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Publications  of  the 

Carnegie  Endowment  for  International  Peace 

Division  of  International  Law 

Washington 


THE  UNITED  STATES  OF  AMERICA: 

A  STUDY  IN  INTERNATIONAL 

ORGANIZATION 


By  the  Author  of  and  Uniform  with  This 
Study  in  International  Organization  : 


Judicial  Settlement  of  Controversies  Between 
States  of  the  American  Union 

Cases  decided  in  the  Supreme  Court  of  the  United  States 
{2  vols.,  4to) 

An  Analysis  of  Cases  decided  in  the  Supreme  Court  of  the  United  States 

(1  vol.,  po) 


I  can  not  refrain  from  asking  your  Lordships  to  consider  how  the  subject  has  been  viewed 
by  our  brethren  in  the  United  States  of  America.  They  carried  the  common  law  of  England 
along  with  them,  and  jurisprudence  is  the  department  of  human  knowledge  to  which,  as 
pointed  out  by  Burke,  they  have  chiefly  devoted  themselves,  and  in  which  they  have  chiefly 
excelled.     {Lord  Campbell  in  Rcgina  v.  Millis,  10  Clark  &  Finnelly,  777,  decided  in  1844.) 

Sitting,  as  it  were,  as  an  international,  as  well  as  a  domestic  tribunal,  we  apply  Fed- 
eral law,  state  law,  and  international  law,  as  the  exigencies  of  the  particular  case  may 
demand.  (Chief  Justice  Fuller  in  Kansas  v.  Colorado,  185  United  States,  125,  146-147,  de- 
cided in  1902.) 

Confederations  have  existed  in  other  countries  than  America ;  republics  have  been  seen 
elsewhere  than  upon  the  shores  of  the  New  World ;  the  representative  system  of  government 
has  been  adopted  in  several  states  of  Europe;  but  I  am  not  aware  that  any  nation  of  the 
globe  has  hitherto  constituted  a  judicial  power  in  the  same  manner  as  the  Americans.  {Alexis 
de  Tocqueville,  De  la  Democratic  en  Amerique,  2  Vols.,  1835,  Vol.  I,  p.  158.) 

The  Supreme  Court  of  the  United  States,  which  is  the  American  Federal  institution  next 
claiming  our  attention,  is  not  only  a  most  interesting  but  a  virtually  unique  creation  of  the 
founders  of  the  Constitution.  .  .  .  The  success  of  this  experiment  has  blinded  men  to  its 
novelty.  There  is  no  exact  precedent  for  it,  either  in  the  ancient  or  in  the  modern  world. 
(Sir  Henry  Sumner  Maine,  Popular  Government,  1SS6,  pp.  217-218.) 

American  experience  has  made  it  an  axiom  in  political  science  that  no  written  constitution 
of  government  can  hope  to  stand  without  a  paramount  and  independent  tribunal  to  deter- 
mine its  construction  and  to  enforce  its  precepts  in  the  last  resort.  This  is  the  great  and 
foremost  duty  cast  by  the  Constitution,  for  the  sake  of  the  Constitution,  upon  the  Supreme 
Court  of  the  United  States.  (Edward  John  Phelps.  The  United  States  Supreme  Court  and 
the  Sovereignty  of  the  People,  1890,  Orations  and  Essays,  1901,  pp.  58-59.) 

The  extraordinary  scope  of  judicial  power  in  this  country  has  accustomed  us  to  see 
the  operations  of  government  and  questions  arising  between  sovereign  states  submitted  to 
judges  who  apply  the  test  of  conformity  to  established  principles  and  rules  of  conduct 
embodied  in  our  constitutions. 

It  seems  natural  and  proper  to  us  that  the  conduct  of  government  affecting  substantial 
rights,  and  not  depending  upon  questions  of  policy,  should  be  passed  upon  by  the  courts 
when  occasion  arises.  It  is  easy,  therefore,  for  Americans  to  grasp  the  idea  that  the  same 
method  of  settlement  should  be  applied  to  questions  growing  out  of  the  conduct  of  nations 
and  not  involving  questions  of  policy.  (Elihu  Root,  Judicial  Settlement  of  International  Dis- 
putes, 1908,  Addresses  on  International  Subjects,  1916,  pp.  151-2.) 


THE  UNITED  STATES  OF  AMERICA; 

A  STUDY  IN  INTERNATIONAL 

ORGANIZATION 


BY 

JAMES  BROWN  SCOTT,  A.M.,  J.U.D.,  LL.D. 

Technical  Delegate  of  the  United  States  to  the  Second  Hague  Peace 

Conference,   1907 ;  Technical  Delegate  of  the  United  States 

to  the  Peace  Conference  at  Paris,  1919. 


"I  send  you  enclos'd  the  propos'd  new  Federal  Constitution  for  these 
States.  I  was  engag'd  4  Months  of  the  last  Summer  in  the  Convention 
that  form'd  it.  It  is  now  sent  by  Congress  to  the  several  States  for  their 
Confirmation.  If  it  succeeds,  I  do  not  see  why  you  might  not  in  Europe 
carry  the  Project  of  good  Henry  the  4th  into  Execution,  by  forming  a 
Federal  Union  and  One  Grand  Republick  of  all  its  different  States  & 
Kingdoms;  by  means  of  a  like  Convention;  for  we  had  many  Interests  to 
reconcile."  Benjamin  Franklin  to  Mr.  Grand,  October  22,  1787. —  Docu- 
mentary History  of  the  Constitution  of  the  United  States  of  America,  Vol. 
IV,  1905,  pp.  341-2- 


NEW  YORK 

OXFORD  UNIVERSITY  PRESS 

AMERICAN    BRANCH:    35    WEST    32nd    STREET 

London,  Toronto,   Melbourne  and  Bombay 

1920 


COPYRIGHT  1920 

BY  TUB 

CARNEGIE  ENDOWMENT  FOR  INTERNATIONAL  PEACE 

Washington,  d.  c. 


TO 

ROBERT  BACON 

IN  AFFECTIONATE  ADMIRATION 


PREFACE 

The  United  States  of  America  constitute  a  union  of  States,  "  a  more 
perfect  Union,"  to  use  the  language  of  the  preamble  to  the  Constitution,  than 
that  under  the  Articles  of  Confederation  which  the  Constitution  was  devised 
to  supplant.  On  July  4,  1776,  the  thirteen  British  colonies  lying  between  the 
Gulf  of  Mexico  and  Canada,  to  the  east  of  the  Mississippi,  abjured  allegiance 
to  the  British  Crown  and  solemnly  published  and  declared  themselves  to  be 
"  Free  and  Independent  States  "  possessing,  as  the  Declaration  of  Independ- 
ence stated,  "  full  power  to  levy  War,  conclude  Peace,  contract  Alliances,  es- 
tablish Commerce,  and  to  do  all  other  Acts  and  Things  which  Independent 
States  may  of  right  do."  Availing  themselves  of  their  right  to  contract  alli- 
ances, they  entered  into  "  a  firm  league  of  friendship  with  each  other,  for  their 
common  defence,  the  security  of  their  liberties,  and  their  mutual  and  general 
welfare,  binding  themselves  to  assist  each  other,  against  all  force  offered  to,  or 
attacks  made  upon  them,  or  any  of  them,  on  account  of  religion,  sovereignty, 
trade,  or  any  other  pretence  whatever."  "  Stiling  "  this  confederation  "  The 
United  States  of  America,"  and  declaring  in  explicit  terms  that  "  each  State 
retains  its  sovereignty,  freedom  and  independence,  and  every  power,  jurisdic- 
tion and  right,  which  is  not  by  this  confederation  expressly  delegated  to  the 
United  States,  in  Congress  assembled,"  the  Articles  of  Confederation  creating 
this  union  of  the  States  were  approved  by  their  delegates  in  Congress  Novem- 
ber 15,  1777,  and  ratified  by  the  last  of  the  thirteen  States  on  March  1,  1781. 

The  firm  league  of  friendship  failing  of  the  purposes  for  which  it  was  cre- 
ated by  the  delegates  of  the  States  in  Congress  assembled  and  ratified  by  the 
States  themselves,  the  Congress  on  February  21,  1787,  resolved  it  to  be  expe- 
dient that  "  on  the  second  Monday  in  May  next,  a  Convention  of  Delegates, 
who  shall  have  been  appointed  by  the  several  States,  be  held  at  Philadelphia,  for 
the  sole  and  express  purpose  of  revising  the  Articles  of  Confederation,  and  re- 
porting to  Congress  and  the  several  Legislatures,  such  alterations  and  provi- 
sions therein,  as  shall,  when  agreed  to  in  Congress,  and  confirmed  by  the  States, 
render  the  federal  Constitution  adequate  to  the  exigencies  of  Government,  and 
the  preservation  of  the  Union."  In  pursuance  of  this  resolution  the  delegates 
of  twelve  of  the  States  met  in  convention  in  the  month  of  May  and  adjourned 
on  September  17,  1787,  having  drafted  a  constitution  for  a  more  perfect  Union 
of  the  United  States  which,  ratified  by  the  thirteen  original  States  in  the  course 
of  the  ensuing  three  years,  today  controls  the  conduct  of  forty-eight  States  and 


PREFACE 


which  in  practice  as  well  as  in  theory  has  proved  adequate  to  the  "  exigencies 
of  government  and  the  preservation  of  the  Union." 

In  the  belief  that  the  experience  of  the  American  States  proclaimed  to  be 
free  and  independent  in  their  Declaration  of  Independence,  each  retaining  "  its 
sovereignty,  freedom  and  independence  "  under  the  Articles  of  Confederation, 
would  be  of  value  in  any  attempt  to  strengthen  that  larger  union  of  States 
which  we  call  the  Society  of  Nations,  the  undersigned  has  ventured  to  treat 
within  the  compass  of  a  volume  some  of  the  international  problems  met  and 
solved  by  the  f  ramers  of  a  more  perfect  Union  under  the  caption  of  "  The 
United  States  of  America:  A  Study  in  International  Organization." 

James  Brown  Scott. 
Washington,  D.  C, 

November  n,  1918. 


Postscriptum,  May  it,  iq?o. —  Absence  from  the  country  and  difficulties 
in  printing  have  delayed  the  appearance  of  the  present  volume.  The  text, 
however,  speaks  from  Armistice  Dav,  1918. 

Two  additions  of  a  later  date  have  been  made  in  the  extracts  prefixed  to 
chapters:  the  first  is  the  text  of  the  settlement  of  the  controversy  between 
Virginia  and  West  Virginia  (Chapter  XIII)  ;  the  second  is  Mr.  Root's  defini- 
tion of  a  justiciable  question  (Chapter  XX).  The  text  of  the  Eighteenth 
Amendment  to  the  Constitution  of  the  United  States  as  printed  in  the  Appendix 
has  also  been  added. 

I  have  left  untouched  the  dedication  to  my  beloved  friend,  Robert  Bacon, 
whose  noble  life  ended  on  May  29,  1919. —  J.  B.  S. 


TABLE  OF  CONTENTS 

CHAPTER  I 
Rise  of  the  Idea  of  Union 

PAGE 

The    Mayflower    Compact 3 

Early  plans  of  union 6 

New   England   Confederation 6 

William   Penn's  "  Scheam  " 9 

Benjamin  Franklin's  plan 11 

The  two  views — -imperial  and  colonial IS 

Foresight        IS 

Dr.  Franklin's  second  plan 16 

CHAPTER  II 

Independence  Declared 

The  fundamental   right 22 

Colonial    view 22 

Imperial   view 22 

A  Continental  Congress 23 

Declaration  and  resolves 24 

An  association 26 

Another  declaration  and  a  petition 27 

The  notion  of  independence 29 

The  final  step 29 

The  Declaration  signed  and  proclaimed 30 

Its  political  philosophy 31 

Monroe's  conception  of  the  results 33 

A  new  body  politic 34 

Our  first  and  only  ally 34 

Origin  of  the  doctrines 35 

CHAPTER  III 

A  Confederation  of  Sovereign  States 

Mr.  Dickinson's  plan 40 

A  United   States  Congress 40 

Large  and  small  States 41 

The  two  forms  of  the  Articles 41 

Nature  of  the  Union 42 

Powers    renounced 42 

Powers  of  Congress 43 

Peace  and  war 43 

Congress  with  appellate  jurisdiction 44 

Suggestion  of  a  judiciary 45 

Defects 45 

xi 


XJi  TABLE   OF   CONTEXTS 

PACK 

Excellences ^o 

International   significance 47 

James   Madison's   summary  of   the  weakness 4' 

Personal    interests " 

Sovereignty ■>* 

Mr.  Madison's  view  of  public  officers 53 

Dissatisfaction 53 

Four  proposals  that  failed 53 

Economic   troubles 54 

Coercion  of  States 55 

Private  initiative 55 

Convention  at  Annapolis 56 

Another  convention  proposed 56 

Congressional   approval 57 

Union  of  sovereign   States 58 

CHAPTER  IV 

Early  Backgrounds  of  the  American  Constitution  :  The  Trading  Companies 

Colonial  charters 64 

Genesis  of  authority  of  Supreme  Court  in  questions  of  constitutionality 65 

Two  kinds  of  charters 66 

Corporations 66 

By-laws          67 

Development  of  trading  companies 68 

Spread  to   America 70 

A  second  charter 71 

A   third  charter 72 

Court  and  assembly 72 

Great  and  general  courts 73 

A  representative  assembly 74 

A  forecast  of  American  liberty 74 

Ratification   required 75 

Two  houses        76 

Distinction  between  North  and   South 77 

The  Plymouth  Company 78 

Growth  of  representative  institutions 82 

Virginia  and  Massachusetts  Colonies  compared 83 

New  instruments  of  government  reverted  to  charters 84 

CHAPTER  V 

Further  Colonial  Precedents 

"  Once  an  Englishman  always  an  Englishman  " 90 

Relation  of  English  law  to  Colonies 90 

Rights  of  conquest  v.  rights  of  discovery 91 

Blackstone's    interpretation 91 

Rights  of  discovery  the  true  basis 92 

Blankard  v.   Galdy 92 

Common  law  of  England  followed  colonists 93 

Colonial   statutes 97 


TABLE   OF   CONTENTS  Xlll 

PAGE 

Conflict  of  interests 99 

Prerogatives  of  the  Crown 99 

Lords  Commissioners  of  Trade  and  Plantations 99 

Committee  for  Hearing  Appeals 100 

Three  kinds  of  appeals  from  Colonial  courts 100 

Precedent  for  the  power  of  the  Supreme  Court  over  Legislatures 101 

Suit  of  a  citizen  v.  a  State 102 

Holden  and  Green  petition 102 

Further  judicial  precedents „ 108 

Boundary  dispute  between  New  York  and  New  Jersey 109 

From  negotiation  to  judicial  procedure 109 

Debt  to  litigious  Rhode  Island 118 

Justice  to  the  small  State 118 

Legal  controversies  over  Colonial  laws 119 

Another  precedent  for  granting  power  of  Supreme  Court  to  declare  legislative  acts  un- 
constitutional       121 

Penn  v.  Lord  Baltimore 123 

A  political  dispute  may  become  justiciable 125 

CHAPTER  VI 

Establishment  of  State  Constitutions 

Impending   revolution 129 

Desire  to  prevent  anarchy 129 

Recommendation  of  Congress 130 

American  political  background  in  1787 131 

Influence  of  charters 131 

The  three  branches  of  government 132 

Sovereignty  vested  in  the  people 133 

A  social  and  a  political  compact 134 

Compact  a  fundamental  law 135 

Revenue   bills 136 

Governor's   signature 136 

Legislative   powers 137 

Executive   powers 138 

Judicial   powers 138 

Source  of  law 139 

CHAPTER  VII 

The  Federal  Convention  :  An  International  Conference 

Demands  of  commerce  and  navigation 145 

May,   1787 147 

Large  and  small  States 14S 

Organization  of  the  Federal  Convention 14S 

An  international  conference 149 

Instructions   to  delegates 150 

Committee  on  rules  and  orders 153 

International  aspects  of  the  Convention 155 

Opening  of  the  Convention 156 

Mr.  Randolph's  fifteen  resolutions 158 

The  four  groups 159 


XIV  TABLE   OF   CONTENTS 

l  PAGE 

Change  of  purpose 160 

A  union  of  free  States 161 

The   word   "national" 162 

Other  "plans" 163 

National  v.  federal  government 164 

Coercion  of  States 165 

Enumeration  of  general  powers 165 

International  law  in  the  Constitution 167 

Government  of  laws  and  not  of  men 168 

Seat  of  government 168 

Government  of  limited  powers 168 

CHAPTER  VIII 

Creation  of  the  Federal  Legislature 

The  spirit  of  compromise 172 

The  two  branches  of  the  legislature 172 

Questions  of  representation 173 

Large  and  small  States 174 

Equality  of  States 175 

The  New  Jersey  plan 177 

The   Connecticut  proposal ...   179 

Diversity  of   views 181 

Victory  of  the  smaller  States 185 

The  first  great  compromise 187 

The  second  compromise 187 

Grant  of  legislative  power 190 

CHAPTER  IX 

Creation  of  the  Executive 

A  single  executive 195 

Term  of  office 195 

Electoral   system 196 

President's  oath  of  office 197 

His  great  powers 197 

Treaties 197 

A  check  upon  the  legislature 200 

Executive  and  judicial  vetoes 202 

Laws  operate  on  individuals 202 

The  use  of  force  against  a  State 203 

CHAPTER  X 

The  First  Permanent  Tribunal  of  the  States 

Voluntary  self-denials,  including  disarmament 210 

Diplomatic  and  military  settlements 210 

Another  kind  of  settlement 211 

Courts  of  the  Confederated   States 211 

International   questions 212 

International  implications  of  the  Confederate  judiciary 212 


TABLE   OF   CONTENTS  XV 

PAGE 

Lessons  of  the  State  courts 213 

Trial  of  piracies  and  felonies 214 

The  first  federal  tribunal 215 

First  case  of  appeal 218 

Congressional  Committee  on  Appeals 218 

The  case  of  The  Active 220 

Congressional  resolutions  —  the  relation  of  States 221 

CHAPTER  XI 
Temporary  Judicial  Commissions 

Nature  of  the  commissions 229 

Influence  of   Privy  Council 230 

Pennsylvania  v.   Connecticut 231 

Two  other  cases 234 

Significance  of  the  temporary  tribunals 238 

Other  appeals  to  Congress 238 

Dispute  involving  the  existence  of  a  State 238 

Pennsylvania  v.   Virginia 241 

Congress  refuses  to  appoint  a  court 242 

CHAPTER  XII 
Creation  of  the  Supreme  Court 

Necessity  for  a  common  judiciary 247 

Problem  of   sovereignty • •  248 

Differences  of  opinion 249 

The  two  plans 249 

The    Virginian    plan 250 

The  New  Jersey  plan 256 

Question  of  appointment  of  judges 257 

Committee  of  Detail 260 

Draft  proposals 261 

CHAPTER  XIII 

Prototype  of  a  Court  of  International  Justice 

Questions  arising  under  treaties 268 

How  political  questions  become  judicial 270 

Arbitration    considered 270 

Original  and  appellate  jurisdiction 272 

Impeachment 272 

Powers  of  the  Court 274 

The  supreme  law  of  the  land 276 

The  question  of  sanction 279 

Coercion  of  law  v.  coercion  of  force 279 

CHAPTER  XIV 

The  Admission  of  New  States 

The   Northwest   Ordinance 286 

Compact  between  people  of  States  and  Northwestern  Territory 288 

Attitude    of    large    States 291 


XVI  TAELE   OF   CONTENTS 

PACE 

Virginia  relinquishes  claim 293 

New  States  on  equality  with  old 294 

Government  of  the  territories 295 

CHAPTER    XV 

Amendments  and  Ratification 

Provisions  for  amendment 299 

Representation  of  small  States  not  subject  to  amendment 300 

Methods  of  amendment 300 

A  system  of  double  constitutions 302 

The  power  to  amend 304 

Ratification 305 

Discussion  of  the  mode  of  ratification 305 

Sovereign  people 308 

The  spirit  of  the  ratifications 309 

Difficulties  of  ratification 312 

Contest  in  New  York 314 

The  Federalist 315 

CHAPTER  XVI 

Government  Set  Up:  Amendments 

Per  interim 321 

The  new  Government  begun 322 

Amendments  moved 323 

Demand  for  a  Bill  of  Rights 324 

Relation  of  States  to  the  Union 325 

Amendments  before  the  Senate 326 

Powers  not  delegated  are  reserved  to  the  States 328 

Value  of  the  amendments 330 

State  conventions 331 

The  first  ten  amendments 331 

Difficulties   overcome 332 

The  sovereignty  of  the  States 333 

The  division  of  sovereign  powers 334 

CHAPTER  XVII 

The  Nature  of  Judicial  Power 

The  influence  of  Montesquieu 341 

Limitation  of  powers 342 

Congress  defines  extent  but  not  nature  of  the  Court's  power 342 

Judicial  power  defined  by  Court  itself 343 

Influence  of  English  common  law 343 

English  cases  on  the  judicial  power 344 

An  American  case 349 

Court  can  pass  on  constitutionality  of  a  legislative  act 349 

Extra-judicial    duties 350 

Powers  of  Court  strictly  judicial 353 


TABLE   OF   CONTENTS  XV11 

PAGE 

Further  distinction  between  judicial  and  other  powers 354 

Appellate    jurisdiction 357 

Original    jurisdiction 358 

The  Court  may  compel  individuals  but  not  States  to  appear 359 

Sovereignty  of  States  protected 359 

Separation  of  powers 360 

Finality  of  the  Court's  decree 360 

Court's  relation  to  the  Government  and  to  the  States 369 

CHAPTER  XVIII 

Powers  of  the  Supreme  Court 

Determination  of  constitutionality 374 

Powers   purely  judicial 375 

Political  contrasted  with  judicial  powers 376 

Judicial  power  as  to  treaties 378 

President's  rights  under  international  law 382 

CHAPTER  XIX 

Extent  and  Exercise  of  Judicial  Power 

The  question  of  extent 398 

Court  denned 400 

The  word  "  supreme  " 400 

Finality 400 

Jurisdiction 400 

Determination  of  jurisdiction 401 

"  Judiciary   Act  " 402 

"  Nature  and  extent "  determined 405 

The  liability  of  States 410 

How  cases  may  arise  in  law  and  equity 412 

Is  judicial  power  concurrent  or  exclusive? 413 

Confusion  over  political  v.  judicial  questions 418 

How  political  questions  become  judicial 420 

Application  to  Society  of  Nations 424 

CHAPTER  XX 

Case  —  Controversy  —  Suit 

Supreme  Court  functions  in  cases  only 427 

"  Case  "   denned 427 

"Suit"  defined 428 

Cases  and  controversies 429 

International   "case" 431 

CHAPTER  XXI 

Judicial   Powers  and  Their   Relation   to   Law  and   Equity,  to  Admiralty,   Maritime 

and  International  Law 

Definition  of  "  law  "  and  "  equity  " 438 

Influence  of  English  terminology 438 


XVlii  TABLE   OF   CONTENTS 

PACE 

Blackstone  and  Wtel 439 

International  law  the  common  law  of  nations 439 

Law  and  equity 440 

Common  law  limited  to  civil  cases 441 

Common  law  applicable  in  cases  covered  by  special  legislative  act 442 

Interpretation  of  terms 442 

Admiralty  and  maritime  jurisdiction  included 447 

An  International  Court  of  Prize 447 

CHAPTER  XXII 

Immunity  of  States  and  Nations  from  Suit 

Suits  against  States 453 

Coercion  of  States 453 

Judicial  power  over  States 453 

Consent  to  be  sued 454 

Sovereignty  not  always  an  exemption 456 

Suit  without  consent  inconsistent  with  sovereignty 457 

Waiving  of  sovereignty 457 

A  plaintiff  sovereign  relinquishes  a  degree  of  sovereignty 462 

The  sovereign  becomes  subordinate  to  law 464 

Further  renunciation  of  immunity  from  suit  by  a  sovereign  power 464 

A  State  may  sue  a  State 465 

CHAPTER  XXIII 

A  More  Perfect  Society  of  Nations 

The  great  problem 467 

A  possible  solution 468 

APPENDIX 
A.    Plans  of  Union  for  the  Colonies  and  the  States  of  North  America 

I.    The  New  England  Confederation  of  1643 471 

II.    William  Penn's  plan  for  a  union  of  the  Colonies,  February  8,  1698 476 

III.  Benjamin  Franklin's  plan  for  a  union  of  the  several  Colonies  adopted  at  Albany, 

July  10,  1754 477 

IV.  Benjamin  Franklin's  Sketch  of  Articles  of  Confederation  read  before  Congress, 

June  21,  1775 488 

V.    The  Declaration  of  Independence,  July  4,  1776 492 

VI.    Articles  of  Confederation  adopted  by  Congress,  November  15,  1777,  ratified  by 

the  last  of  the  thirteen  States,  March  1,  1781 494 

VII.    The  Constitution  of  the  United  States  adopted  September  17,  1787,  in  effect  from 

and  after  March  4,  1789 502 

B.  An    Ordinance  for  the   Government   of  the   Territory   of  the   United 

States  Northwest  of  the  River  Ohio 514 

C.  Documents  from  Which  the  Constitution  was  Evolved 

I.    Text  of  Mr.  Randolph's  Resolutions,  presented  to  the  Convention  May  29,  1787  .  520 
II.    Outline  of  the  Pinckney  Plan  presented  to  the  Convention  May  29,  1787     .     .     .522 


TABLE   OF   CONTENTS  XIX 

PAGE 

III.  Report  of  the  Committee  of  the  Whole  on  Mr.  Randolph's  ^  ^positions,  June  13, 

1787 , 524 

IV.  Text  of  the  New  Jersey  Plan,  moved  by  Mr.  Patterson  June  IS,  1787     .     .     .     .525 
V.     Alexander  Hamilton's  sketch  of  a  Government  for  the  United  States,  presented 

June  18,  1787* 527 

VI.     Mr.  Randolph's  Resolutions  as  revised  and  enlarged  by  the  Convention  and  re- 
ferred July  26,  1787,  to  the  Committee  of  Detail 529 

VII.     Report  of  the  Committee  of  Detail,  August  6,  1787 532 

VIII.     Proceedings  of   Convention   referred  to  the   Committee  of   Style   and  Arrange- 
ment      541 

IX.    The  Constitution   as   reported  by  the  Committee  on   Style,   September  12,   1787, 

and  as  signed,  September  17,  1787 552 

X.     Letter  transmitting  the  Constitution  to  Congress,  September  17,  1787    ....   570 
XI.     Resolution   of  the  Convention,   September   17,   1787,  that   Congress  transmit  the 

Constitution  to  the  States  for  ratification 571 

D.     Amendments  to  the  Constitution 

I.    The  first  ten  amendments  to  the  Constitution  in  lieu  of  a  Bill  of  Rights     .     .     .   572 
II.     Subsequent  amendments  to  the  Constitution 573 

Index 577 


THE  UNITED  STATES  OF  AMERICA:  A  STUDY 
IN  INTERNATIONAL  ORGANIZATION 


I.     RISE  OF  THE  IDEA  OF  UNION 

A  prima  descendit  origine  mundi 
Causarum  series.     (Lucan,  Pharsalia,  Book  VI.) 

The  appreciation  of  a  great  and  vital  want  will  account  for  the  origin  of  the  idea  of 
a  common  union.  A  study  of  its  embodiment  reveals  the  feature  of  growth.  It  is  so 
original  and  peculiar,  that  it  may  be  termed  American.  (Richard  Frothingham,  The  Rise 
of  The  Republic  of  the  United  States,  1872,  p.  28.) 

Often,  too,  an  institution  may  appear  to  be  the  result  of  direct  imitation,  when  in  fact 
it  may  be  the  product  of  a  common  race  instinct,  as  in  the  case  of  the  representative 
system  reproducing  itself  in  all  the  branches  of  the  Teutonic  race.  .  .  .  The  law  of  historical 
continuity,  or  political  inheritance,  is  not  inconsistent  with  the  law  of  historical  variation, 
or  political  originality.  In  fact,  the  greater  the  accumulations  of  past  experiences,  the 
greater  will  be  the  capacity  to  solve  by  original  methods  the  problems  presented  by  new 
experiences.  (William  C.  Morey,  The  First  State  Constitutions,  1893,  Annals  of  the 
American  Academy  of  Political  and  Social  Science,  Vol.  IV,  part  I,  p.  203.) 

Mr.  Gladstone  recently  pronounced  it  the  most  wonderful  work  ever  struck  off  at  a  given 
time  by  the  brain  and  purpose  of  man. 

John  Stuart  Mill  said,  in  his  essay  on  De  Tocqueville's  "  Democracy  in  America,"  that 
"  the  whole  edifice  was  constructed,  within   the  memory  of  man,  upon  abstract   principles." 

If  we  are  to  understand  these. expressions  as  meaning  that  the  Constitution  sprang  into 
being,  like  Athene  from  the  brain  of  Zeus,  or  that  it  was  the  work  of  doctrinaires  en- 
deavoring to  found  an  ideal  republic,  it  would  be  easy  to  show  their  falsity.  The  Con- 
stitution "  has  its  roots  deep  in  the  soil  of  the  past."  No  one  generation,  whatever  its 
experience,  could  have  invented  such  a  system.  It  is  a  development,  under  a  new  environ- 
ment, of  old  forms  of  government.  Everything  in  it  that  was  new  was  a  "  conservative 
innovation."  (W.  T.  Brantly,  Of  the  Influence  of  European  Speculation  in  the  Formation 
of  the  Federal  Constitution,  18S0,  in  Southern  Law  Review,  New  Series,  Vol.  VI,  p.  351.) 

Yet  it  is  a  characteristic  of  the  race  both  in  England  and  America  that  it  has  never  really 
broken  with  the  past.  Whatever  of  novelty  may  appear  from  time  to  time,  there  is  ever 
under  all  the  great  and  steady  force  of  historic  continuity.  (C.  Ellis  Stevens,  Sources  of  the 
Constitution  of  the  United  States,  1894,  2nd  edition,  p.  xvii.) 

In  fact,  the  distribution  of  political  powers  between  co-ordinate  governments  —  a  system 
which  sprang  up  in  Plymouth,  Massachusetts  Bay,  Connecticut  and  Rhode  Island  —  had 
no  existing  counterpart  in  the  countries  of  the  civilized  world.  It  can  be  historically  ex- 
plained only  as  the  instinctive  reproduction  of  primitive  institutions  under  the  influence  of 
a  primitive  environment.  (William  C.  Morey,  The  Sources  of  American  Federalism,  /Spj, 
The  American  Academy  of  Political  and  Social  Science,  Vol.  VI,  p.  211.) 

The  new  political  system  was  a  modification  neither  of  the  Confederation  of  1781,  nor 
of  the  Albany  Union  of  1754,  nor  of  the  New  England  Confederacy  of  1643.  These  super- 
ficial alliances  served,  it  is  true,  to  bring  the  colonies  and  States  into  more  amicable  relations, 
by  which  they  could  aid  each  other  against  their  common  foes.  But  none  of  them  contained 
the  essential  and  distinctive  features  of  that  composite  state-system  which  was  established 
by   the   Constitution   of    1787.    We   must   search    deeper   into   American   political   life,   and 

1 


2  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

perhaps  into  the  common  political  life  of  our  Teutonic,  and  even  our  Aryan  ancestors  to 
find  the  true  historical  sources  of  American  federalism.  (William  C.  Morey,  The  Sources  of 
American  Federalism,  1895,  The  American  Academy  of  Political  and  Social  Science  Vol 
VI,  p.  204.) 

In  the  old  system  assemblies  were  not  formally  instituted,  but  grew  up  of  themselves 
because  it  was  the  nature  of  Englishmen  to  assemble.  (Sir  John  Robert  Seeley,  The  Ex- 
pansion of  England,  1883,  American  edition,  p.  67.) 

_  A  proposition  for  a  Union  was  suggested  at  a  meeting  of  Connecticut  magistrates  and 
ministers  in  Boston,  in  1637.  (Richard  Frolhingham,  The  Rise  of  The  Republic  of  the 
United    States,    1872,    p.    39.) 

The  New-England  Confederacy  recognized  the  equality  of  the  colonies  that  were  parties 
to  it,  and  the  inviolability  of  their  local  governments ;  but  the  provisions  designed  to  promote 
the  common  welfare  were  a  crude  embodiment  of  the  union  element.  (Richard  Frolhingham, 
The  Rise  of  The  Republic  of  the   United  States,  1872,  p.  72.) 

But  it  is  beginning  to  be  realized  that  the  Constitution  of  the  United  States,  though 
possessing  elements  of  novelty,  is  not,  after  all,  the  new  creation  that  this  idea  would  imply. 
It  is  not,  properly  speaking,  the  original  composition  of  one  body  of  men,  nor  the  outcome 
of  one  definite  epoch, —  it  is  more  and  better  than  that.  It  does  not  stand  in  historical  isola- 
tion, free  of  antecedents.  It  rests  upon  very  old  principles, —  principles  laboriously  worked 
out  by  long  ages  of  constitutional  struggle.  It  looks  back  to  the  annals  of  the  colonies  and 
of  the  mother-land  for  its  sources  and  its  explanation.  And  it  was  rendered  possible,  and 
made  what  it  is,  by  the  political  development  of  many  generations  of  men.  (C.  Ellis  Stevens, 
Sources  of  the  Constitution  of  the  United  States,  1894,  2nd  edition,  pp.  viii-ix.) 

The  best  reason  for  American  pride  in  the  Constitution  lies,  not  in  the  creative  genius 
of  its  framers,  nor  in  the  beauty  and  symmetry  of  their  work,  but  in  the  fact  that  it  was 
and  is  a  perfect  expression  of  the  institutional  methods  of  its  people.  It  is  for  that  reason 
that  it  meets  their  needs  as  well  to-day  as  in  1787-89.  So  long  as  they  shall  continue  in 
the  ways  of  their  fathers;  so  long  as  they  shall  regard  with  pronounced  disfavor  the 
political  quacks  who  constantly  beg  them  to  hazard  a  trial  of  never-tested  remedies;  so  long 
may  they  continue  to  take  a  just  pride  in  their  Constitution,  under  all  its  possible  coming 
changes,  as  one  which  has  been  "adequately  discussed,"  and  the  results  of  the  discussion 
of  which  have  been  fully  "tested  by  experiment."  (Alexander  Johnston,  The  First  Century 
of  the  Constitution,  The  New  Princeton  Review,  Vol.  IV,  No.  2,  1887,  p.  190.) 


CHAPTER  I 

RISE   OF    THE    IDEA   OF    UNION 

On  the  11th  day  of  November,  according  to  the  old,  but  on  the  21st  day  of 
November,  1620,  according  to  the  new  order  of  things,  some  forty-one  pas- 
sengers of  the  Mayflower,  whom  a  grateful  posterity  calls  the  Pilgrims,  bring- 
ing to  the  Xew  World  a  new  type  of  men  and  a  new  spirit  which  we  may  with 
just  pride  call  the  American  spirit,  entered  into  a  compact  for  their  government 
when  they  should  leave  the  little  vessel  which  had  carried  them  across  a  stormy 
ocean  out  of  their  course  to  the  Hudson,  for  which  region  they  had  a  patent, 
to  the  inhospitable  shores  of  New  England,  for  which  they  had  no  patent. 
The  passage  across  the  Atlantic  had  been  stormy  in  more  ways  than  one,  for, 
in  the  absence  of  a  patent  from  the  New  England  Company,  the  Pilgrims 
were  without  title  to  the  soil  upon  which  they  were  soon  to  set  foot.  In  the 
absence  of  a  charter  from  the  Crown,  they  were  without  authority  to  govern 
themselves  as  a  body  politic.  Because  of  these  things  and  also  because  of 
the  frailties  to  which  even  some  of  their  number  were  subject,  the  better  part 
of  them,  believing  that  government  as  instituted  among  men  derives  its  just 
powers  from  the  consent  of  the  governed  and  that  this  consent  was  in  itself 
a  compact  on  their  part,  entered  into  that  agreement  which  we  today  call  the 
Mayflower  Compact,  which  they  thus  happily  expressed: 

In  y°  name  of  God,  Amen.  We  whose  names  are  underwriter  the  loyall  com^t"™" 
subjects  of  our  dread  soveraigne  Lord,  King  James,  by  ye  grace  of  God,  of 
Great  Britaine,  Franc,  &  Ireland  king,  defender  of  ye  faith,  &c,  haveing 
undertaken,  for  ye  glorie  of  God,  and  advancemente  of  ye  Christian  faith,  and 
honour  of  our  king  &  countrie,  a  voyage  to  plant  y°  first  colonie  in  ye 
Northerne  parts  of  Virginia,  doe  by  these  presents  solemnly  &  mutualy  in  y° 
presence  of  God,  and  one  of  another,  covenant  &  combine  our  selves  togeather 
into  a  civill  body  politick,  for  our  better  ordering  &  preservation  &  further- 
ance of  ye  ends  aforesaid;  and  by  vertue  hearof  to  enacte,  constitute,  and 
frame  such  just  &  equall  lawes,  ordinances,  acts,  constitutions,  &  offices,  from 
time  to  time,  as  shall  be  thought  most  meete  &  convenient  for  ye  generall  good 
of  ye  Colonie,  unto  which  we  promise  all  due  submission  and  obedience.1 

Tust  as  the  separatists,  whom  we  call  the  Pilgrim  fathers,  traversed  a  waste 
of  waters  from  the  Old  World  to  the  New,  so  separatists  in  the  political  sense 

1  William  Bradford,  History  of   Plymouth   Plantation,  Collections  of  the  Massachusetts 
Historical  Society,  1856,  4th  Series,  Vol.  iii,  pp.  89-90. 

3 


4  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

of  the  word  traversed  a  waste  of  wilderness  and  left  three  of  the  then  eight 
towns  of  Massachusetts  Bay  in  1635,  pushing  to  the  west  —  with  the  permis- 
sion, be  it  said,  of  that  commonwealth,  or  rather,  acting  under  a  commission 
of  its  General  Court  for  a  twelvemonth.  Establishing  three  towns  on  the 
western  bank  of  the  Connecticut  River,  they  laid  the  foundation  of  the  State 
of  that  name;  furnishing  in  its  constitution  of  1639,  known  as  the  Funda- 
mental Orders  of  Connecticut,  what  has  been  called  the  first  written  constitu- 
tion in  the  modern  sense  of  the  term  as  a  permanent  limitation  on  governmental 
powers  known  in  history,  and  suggesting,  it  has  been  claimed,  by  the  confed- 
eration of  its  towns,  which,  however,  retained  the  power  not  delegated  to  the 
State,  the  idea  of  that  more  perfect  Union  composed  of  the  American  States. 
The  spirit  which  pervaded  these  newer  Pilgrims,  and  which  today  pervades 
the  western  world,  was  stated  by  Thomas  Hooker,  one  of  the  chief  settlers, 
from  his  pulpit  in  Hartford  some  seven  months  before  the  Fundamental  Or- 
ders were  drafted  and  went  into  effect.  He  chose  for  his  text  the  13th  verse 
of  the  first  chapter  of  Deuteronomy:  "'Take  you  wise  men,  and  under- 
standing, and  known  among  your  tribes,  and  I  will  make  them  rulers  over 
you.'  Captains  over  thousands,  and  captains  over  hundreds  —  over  fifties  — 
over  tens,  &c."  In  the  course  of  his  sermon  he  is  reported  to  have  said,  under 
the  caption  of  Doctrine,  in  the  brief  extract  of  it  made  by  one  of  the  congrega- 
tion: 

I.  That  the  choice  of  public  magistrates  belongs  unto  the  people,  by 
God's  own  allowance. 

II.  The  privilege  of  election,  which  belongs  to  the  people,  therefore,  must 
not  be  exercised  according  to  their  humours,  but  according  to  the  blessed 
will  and  law  of  God. 

III.  They  who  have  power  to  appoint  officers  and  magistrates,  it  is  in 
their  power,  also,  to  set  the  bounds  and  limitations  of  the  power  and  place 
unto  which  they  call  them. 

And  the  American  Hooker  is  reported  as  giving  for  his  American  polity 
the  following  Reasons: 

1.  Because  the  foundation  of  authority  is  laid,  firstly,  in  the  free  con- 
sent of  the  people. 

2.  Because,  by  a  free  choice,  the  hearts  of  the  people  will  be  more  in- 
clined to  the  love  of  the  persons  [chosen]  and  more  ready  to  yield  [obedi- 
ence]. 

3.  Because,  of  that  duty  and  engagement  of  the  people.1 

In  the  preamble  to  the  Fundamental  Orders,  the  American  theory  of  gov- 
ernment is  thus  stated,  omitting  provisions  concerning  churches,  in  which  mem- 
bership, however,  was  not  essential  to  the  exercise  of  civil  rights : 

1  Abstracts  of  Two  Sermons  by  Rev.  Thomas  Hooker,  from  the  short-hand  notes  of  Mr. 
Henry  Wolcott,  Collections  of  the  Connecticut  Historical  Society,  1860,  Vol.  i,  p.  20. 


RISE    OF   THE    IDEA    OF    UNION  0 

Forasmuch  as  it  hath  pleased  the  Allmighty  God  by  the  wise  disposition 
of  his  diuyne  pruidence  so  to  Order  and  dispose  of  things  that  we  the  In- 
habitants and  Residents  of  Windsor,  Harteford  and  Wethersfield  are  now 
cohabiting  and  dwelling  in  and  vppon  the  River  of  Conectecotte  and  the 
Lands  thereunto  adioyneing ;  And  well  knowing  where  a  people  are  gath- 
ered togather  the  word  of  God  requires  that  to  mayntayne  the  peace  and  vnion 
of  such  a  people  there  should  be  an  orderly  and  decent  Gouernment  estab- 
lished according  to  God,  to  order  and  dispose  of  the  affayres  of  the  people 
at  all  seasons  as  occation  shall  require ;  doe  therefore  assotiate  and  conioyne 
our  selues  to  be  as  one  Publike  State  or  Cofnonwelth ;  and  doe,  for  our  selues 
and  our  Successors  and  such  as  shall  be  adioyned  to  vs  att  any  tyme  here- 
after, enter  into  Combination  and  Confederation  togather,  to  mayntayne 
and  prsearue  the  liberty  and  purity  of  the  gospell  of  our  Lord  Jesus  wch 
we  now  prfesse  ...  ;  As  also  in  or  Ciuell  Affaires  to  be  guided  and 
gouerned  according  to  such  Lawes,  Rules,  Orders  and  decrees  as  shall  be 
made,  oi=dered  &  decreed  .  .  -1 

As  in  the  case  of  Plymouth,  so  in  the  settlements  in  the  Connecticut  valley, 
there  was  apparently  no  grant  of  title  to  land  and  there  was  no  charter  from 
the  Crown.  In  the  Mayflower  Compact,  the  signers  profess  loyalty  and 
obedience  to  their  "  dread  soveraigne  Lord,"  but  find  in  themselves  authority 
"  to  enacte,  constitute,  and  frame  such  just  &  equall  laws,  ordinances,  acts, 
constitutions,  &  offices,  from  time  to  time,"  which  they  themselves  shall  con- 
sider to  be  in  the  general  interest  and  good  of  the  colony.  In  the  Funda- 
mental Orders  there  is  no  reference  to  their  "  dread  soveraigne  Lord,"  and 
the  confederating  towns,  recognizing  that  in  their  case  government  derives  its 
just  consent  from  their  inhabitants  and  residents,  proceed  without  further  ado 
to  provide  for  the  election  of  a  governor,  magistrates  and  deputies  to  the  gen- 
eral assemblies  or  courts  "  for  makeing  of  lawes,  and  any  other  publike  occa- 
tion, wch  conserns  the  good  of  the  Cofnonwelth."  2 

The  views  of  the  Pilgrim  fathers  and  of  the  Connecticut  settlers  in  the 
matter  of  compact  and  the  action  of  the  Connecticut  settlers  in  framing  a 
system  of  government  for  their  self-created  body  politic  have  been  selected, 
not  for  the  purpose  of  establishing  priority  in  behalf  of  one  or  the  other  but  as 
showing  how,  freed  from  the  environment  of  the  Old,  the  settlers  of  the  New 
World  stated  and  put  into  practice  the  doctrines  held  by  them  as  individuals 
when  unrestrained  by  the  provisions  of  a  charter  or  instructions  from  the 
Crown,  and  as  indicating  the  conceptions  of  government  likely  to  take  visible 
form  and  effect  in  this  western  world  when  the  inhabitants  of  the  colonies 
were  free  to  devise  constitutions  for  their  States  and  a  union  of  those 
States. 

1  F.  N.  Thorpe,  The  Federal  and  State  Constitutions,  Colonial  Charters,  and  Other 
Organic  Laivs  of  the  United  States  of  America,  1909,  Vol.  I,  p.  519;  B.  P.  Poore,  The  Fed- 
eral and  State  Constitutions,  Colonial  Charters,  and  Other  Organic  Laws  of  the  i'nitcd 
States,  1877,  p.  249. 

2  Thorpe,  ibid.,  p.  520 ;  Poore,  ibid.,  p.  250. 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Early  Plans 
of  L'nion 


New  England 
Confederation 


The  possibility  of  union  was  present  to  the  minds  of  the  American  colonists 
even  in  the  17th  century,  shown  by  the  New  England  Confederation,  organized 
in  1643  and  surviving  the  restoration  of  the  Stuarts  in  1660.  William  Penn, 
a  great  and  a  good  man,  held  in  grateful  remembrance  not  only  by  the  Com- 
monwealth which  bears  his  name  but  by  the  American  people,  and  indeed  the 
world  at  large,  proposed  a  union  of  the  colonists  as  far  back  as  1697.  A  plan 
proposed  by  Dr.  Franklin  in  1754  was,  as  its  author  aptly  said,  rejected  in 
America  because  it  had  too  much  of  the  prerogative,  and  in  England  because  it 
was  too  democratic,  and  was  therefore  not  in  accord  with  the  plans  of  the 
home  government. 

These  plans  are  of  interest  as  showing  how  propinquity  leads  to  union,  and 
in  our  case  to  a  union  recognizing  the  greater  interest  of  the  whole  without 
degrading  the  colonies  or  the  states  into  provinces. 

The  aim  or  purpose  of  the  New  England  Confederation,  as  it  is  generally 
called,  is  admirably  and  quaintly  set  forth  in  what  may  be  called  the  preamble, 
or  inducement  to  it,  and  the  first  article  runs  as  follows : 


Whereas  we  all  came  into  these  parts  of  America  with  one  and  the  same 
end  and  ayme,  namely,  to  advance  the  Kingdome  of  our  Lord  Jesus  Christ, 
and  to  enjoy  the  liberties  of  the  Gospel,  in  purity  with  peace;  and  whereas  in 
our  settling  (by  a  wise  providence  of  God)  we  are  further  dispersed  upon 
the  Sea-Coasts  and  Rivers,  then  was  at  first  intended,  so  that  we  cannot  (ac- 
cording to  our  desire)  with  convenience  communicate  in  one  Government  and 
Jurisdiction ;  and  whereas  we  live  encompassed  with  people  of  severall  Na- 
tions, and  strange  languages  which  hereafter  may  prove  injurious  to  us  and 
our  posterity:  And  forasmuch  as  the  Natives  have  formerly  committed 
sundry  insolencies  and  outrages  upon  severall  Plantations  of  the  English, 
and  have  of  late  combined  themselves  against  us.  And  seeing  by  reason  of 
the  sad  Distractions  in  England,  which  they  have  heard  of,  and  by  which 
they  know  we  are  hindered  both  from  that  humble  way  of  seeking  advice 
or  reaping  those  comfortable  fruits  of  protection  which,  at  other  times,  we 
might  well  expect;  we  therefore  doe  conceive  it  our  bounden  duty,  without 
delay,  to  enter  into  a  present  Consotiation  amongst  our  selves,  for  mutuall 
help  and  strength  in  all  our  future  concernments,  that,  as  in  Nation,  and 
Religion,  so,  in  other  respects,  we  be,  and  continue,  One,  according  to  the 
tenour  and  true  meaning  of  the  ensuing  Articles. 

I.  Wherefore  it  is  fully  Agreed  and  Concluded  by  and  between  the  parties, 
or  Jurisdictions  above  named,  and  they  doe  joyntly  and  severally  by  these 
presents  agree  and  conclude,  That  they  all  be,  and  henceforth  be  called  by 
the  name  of  The  United  Colonies  of  New-England.1 

The  second  article  states  that  the  United  Colonies  entered  into  this  "  firm 
and  perpetuall  league  of  friendship  and  amity,  for  offence  and  defence,  mutuall 
advice  and  succour  .  .  .  and  for  their  own  mutuall  safety,  and  wellfare." 

The  third  article  limits  the  Union  to  the  colonies  of  Massachusetts,  Ply- 

1  Records  of  the  Colonv  or  Jurisdiction  of  New  Haven  from  May,  1653,  to  the  Union, 
Charles  J.  Hoadly,  ed.,  1858,  p.  562. 


RISE    OF    THE    IDEA    OF    UNION  / 

mouth,  Connecticut  and  New  Haven,  leaving  out  Rhode  Island  unless  it  would 
acknowledge  the  jurisdiction  either  of  Massachusetts  or  of  Plymouth.  This 
the  Rhode  Island  settlement  refused  to  do  and  its  application  for  admission  was 
rejected.  This  little  community  has  had  a  mind  of  its  own.  It  was  not  a 
member  of  the  first  Union ;  it  failed  to  send  delegates  to  the  Constitutional 
Convention  of  1787,  and  it  left  itself  out  of  that  greater  Union  which  we  call 
the  United  States  until  it,  the  smallest,  decided  to  throw  in  its  lot  with  the 
other  and  larger  States. 

The  fourth  article  provided  that  the  expenses  of  warfare, —  wars  were  to  be 
just, —  offensive  or  defensive,  "  both  in  men,  provisions,  and  all  other  disburse- 
ments," should  be  borne  according  to  the  males  within  each  of  the  colonies 
"  from  sixteen  yeares  old,  to  threescore,  being  inhabitants  there,"  and  the 
spoils  of  war,  if  any  there  should  be,  were  to  be  "  proportionably  divided 
among  the  said  Confederates." 

The  fifth  article  declared  that  Massachusetts,  as  the  larger  colony,  should 
furnish  against  the  enemy  one  hundred  armed  men,  and  that  each  of  the  others 
should  furnish  forty-five,  and  in  this  proportion  if  more  or  less  were  needed. 
This  was,  however,  only  to  apply  to  just  wars.  A  method  was  needed  and 
provided  for  determining  whether  the  wars  were  just,  for  if  they  were  not  the 
"  Confederates  "  were  not  to  be  saddled  with  the  expense  of  the  member  caus- 
ing an  unjust  war.  The  commissioners  of  the  Confederation  were  to  deter- 
mine this,  "  and  if  it  appear,  that  the  fault  lay  in  the  party  so  invaded,  that 
then,  that  Jurisdiction,  or  Plantation,  make  just  satisfaction,  both  to  the  invad- 
ers, whom  they  have  injuried,  and  bear  all  the  charges  of  the  war  themselves, 
without  requiring  any  allowance  from  the  rest  of  the  Confederates  toward  the 
same."  * 

After  having  stated  the  general  aims  and  purposes  of  the  Confederation  to 
be  for  mutual  protection,  and  the  part  which  each  should  play  in  case  of  war, 
which  the  Union  evidently  contemplated  as  a  defensive  measure,  the  articles 
pass  to  a  question  no  less  important  and  more  germane  to  the  present  purpose. 
In  the  sixth  article  the  Confederation  is  looked  upon  as  having  interests  of  its' 
own,  superior  to  and  different  from  the  interests  of  the  contracting  parties, 
and  a  careful  line  of  demarcation  is  drawn  between  the  league  on  the  one  hand 
and  the  members  thereof  on  the  other.  Equality,  however,  was  the  life  and 
breath  of  the  agreement.  Each  of  the  four  jurisdictions  was  to  appoint  two 
commissioners,  fully  empowered  by  each  of  the  colonies  "  to  hear,  examine, 
weigh,  and  determine  all  affaires  of  war,  or  peace,  leagues,  ayds,  charges,  and 
numbers  of  men  for  war,  division  of  spoyles,  or  whatsoever  is  gotten  by  con- 
quest, receiveing  of  more  Confederates,  or  Plantations  into  Combination  with 
any  of  these  Confederates,"  but  "  not  intermedling  with  the  Government  of 
i  Ibid.,  p.  S64. 


S  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL    ORGANIZATION 

any  of  the  Jurisdictions  which  by  the  third  Article  is  to  be  "  preserued  intirely 
to  themselves."  Six  of  the  eight  commissioners  were  empowered  "  to  settle, 
and  determine  the  businesse  in  question,"  but  if  this  number  should  fail  to 
agree  then  the  matter  was  to  be  referred  to  the  colonies,  and  if  "  the  businesse 
so  referred,  be  concluded,  then  to  be  prosecuted  by  the  Confederates,  and  all 
their  Members."  A  meeting  was  to  be  held  the  first  Thursday  in  each  Sep- 
tember of  the  year  and  in  regular  rotation  at  each  capital  of  the  contracting 
colonies. 

By  the  seventh  article,  a  president  of  the  commissioners  was  to  be  elected 
by  them,  or  any  six  of  them,  but  he  was  to  be  a  presiding  officer,  not  an  execu- 
tive. 

The  eighth  article  has  some  prophetic  provisions.  Thus,  the  commissioners 
were  to  "  endeavoure  to  frame  and  establish  Agreements  and  Orders  in  gen- 
erall  cases  of  a  civil  nature,  wherein  all  the  Plantations  are  interested,  for 
preserving  peace  amongst  themselves,  and  preventing  (as  much  as  may  be)  all 
occasions  of  war,  or  differences  with  others,  as  about  the  free  and  speedy  pas- 
sage of  Justice  in  each  Jurisdiction,  to  all  the  Confederates  equally,  as  to 
their  own,  receiving  those  that  remove  from  one  Plantation  to  another,  with- 
out due  Certificates."  And  in  the  last  of  these  prophetic  provisions  are  the 
surrender  upon  request  of  "  any  Servant  run  away  from  his  Master,  into  any 
other  of  these  Confederated  Jurisdictions,"  and  the  surrender  of  escaped 
prisoners  or  fugitives  from  justice  upon  request  of  the  magistrates  of  the 
colony  from  which  the  escape  was  made. 

The  ninth  article  is  also  reminiscent,  as  it  were,  of  the  future,  stipulating 
that,  as  "  the  justest  Wars  may  be  of  dangerous  consequence,  especially  to 
the  smaller  Plantations  in  these  United  Colonics,"  it  was  agreed  that  none  of 
them  should  "  at  any  time  hereafter  begin,  undertake  or  engage  themselves,  or 
this  Confederation,  or  any  part  thereof  in  any  War  whatsoever  (sudden  ex- 
igents with  the  necessary  consequences  thereof  excepted  .  .  .)  without  the 
consent  and  agreement  of  the  forenamed  eight  Commissioners,  or  at  least  six 
of  them,  as  in  the  sixt  Article  is  provided." 

The  tenth  article  permitted,  in  default  of  the  attendance  of  all  the  commis- 
sioners duly  notified  to  attend,  four  to  act,  but  six  were  nevertheless  required 
to  determine  the  justice  of  the  war,  and  in  the  eleventh  article  it  was  agreed: 

That  if  any  of  the  Confederates  shall  hereafter  break  any  of  these  present 
Articles,  or  be  any  other  way  injurious  to  any  one  of  the  other  Jurisdictions 
such  breach  of  Agreement,  or  injury  shalbe  duly  considered,  and  ordered 
by  the  Commissioners  for  the  other  Jurisdictions,  that  both  peace,  and  this 
present  Confederation,  may  be  intirely  preserved  without  violation.1 

The  commissioners  of  the  contracting  parties,  othei  than  Plymouth,  were 

1  Records  of  the  Colony  of  New  Haven,  p.  566. 


RISE   OF   THE    IDEA    OF    UNION  y 

duly  authorized  to  sign  the  agreement,  which  they  did  on  May  19  /  29,  1643. 
It  was  therefore  allowed  that  the  articles  and  agreements  of  "  this  perpetuall 
Confederation  "  should  be  submitted  to  the  good  people  of  Plymouth,  and 

That,  if  Plimoth  consente,  then  the  whole  treaty  as  it  stands  in  these 
present  articls  is,  and  shall  continue,  firme  &  stable  without  alteration.  But 
if  Plimoth  come  not  in,  yet  ye  other  three  confederats  doe  by  these  presents 
confeirme  ye  whole  confederation,  and  ye  articles  therof.1 

The  General  Court  of  Plymouth  authorized  its  commissioners  to  ratify  and 
confirm  the  articles  August  29/September  7,  1643,  which  they  did  at  Boston, 
at  which  time  and  place  the  other  commissioners  subscribed  the  Articles  of 
Union  on  behalf  of  their  respective  colonies. 

The  Mayflower  Compact  of  November  11/21,  1620,  had  set  forth  the 
American  conception  of  the  State  as  the  agent  of  the  people  creating  it,  and 
here  in  this  little  confederation  of  four  straggling  colonies,  there  lies  hidden 
the  germ  of  a  greater  Union,  in  which  the  members  should  be  States,  not 
provinces,  determining  their  internal  affairs,  and  be  represented  by  two  com- 
missioners, chosen  by  each  of  them  upon  a  footing  of  equality  in  a  larger  coun- 
cil. It  is  not  meant,  of  course,  that  this  larger  union  was  the  outgrowth  of  the 
smaller,  but  merely  that  the  spirit  which  produced  this  greater  union  was 
already  in  evidence  in  the  New  World.2 

The  idea  of  union  dwelt  in  the  mind  of  William  Penn.  Peace  with  Penn  ?^schaeT^^■'e•nn,| 
was  a  passion.  In  1693  he  published  his  well  known  essay  Toivard  the 
Present  and  Future  Peace  of  Europe,  proposing  the  establishment  of  an  Euro- 
pean diet,  parliament  or  estates,  moved  thereto,  as  he  says,  by  the  project  of 
Henry  IV;  and  it  is  interesting  to  note,  in  passing,  that  Penn's  larger  project 
is  still  before  the  world,  for  it  is  today  the  basis  of  projects  of  leaders  of 
thought  on  both  sides  of  the  Atlantic.  It  can  well  be  imagined,  therefore, 
that,  as  the  proprietor  and  founder  of  the  Commonwealth  which  bears  his 
name,  he  had  a  special  interest  that  it  should  dwell  in  peace,  as  well  as  a  general 
desire  that  the  plantations,  which  already  had  within  them  the  possibilities  of 
statehood,  should  dwell  in  peace  and  harmony.     Therefore,  four  years  after 

1  William  Bradford,  History  of  Plymouth  Plantation,  Collections  of  the  Massachusetts 
Historical  Society,  1856,  4th  Series,  Vol.   Ill,  p.  422. 

2  Of  the  Confederation,  embracing  four  colonies,  thirty-nine  towns  with  a  population  of 
24,000  souls,  a  well  informed  and  just  historian  has  said:  "A  great  principle  was  at  the 
bottom  of  the  confederation;  but,  noble  as  were  the  aims  of  those  who  handled  it,  they  had 
not  yet  attained  to  sufficient  breadth  of  view  to  apply  it  even  to  the  whole  of  New  England." 
Richard  Frothingham,   The  Rise  of  the  Republic  of  the  United  States,  1872,  p.  43. 

The  importance  of  the  Union  of  the  struggling  colonies  as  a  precedent  was  however  pot 
lost  on  the  British  chronicler,  Chalmers,  who  said,  properly  enough,  that  it  "  offers  the  first 
example  of  collition  in  colonial  story  and  showed  to  party  leaders  in  after  times  the  advan- 
tages of  concert."  George  Chalmers,  Political  Annals  of  the  Present  ■'  nited  Colonics  from 
their  Settlement  to  the  Peace  of  1763   (1780),  p.  177. 


10  THE  united  states:  a  study  in  international  organization 

his  international  proposal,  he  suggested  a  colonial  plan  of  union,  entitling  his 
plan : 

A  Briefe  and  Plaine  Scheam  how  the  English  Colonies  in  the  North 
parts  of  America  Viz :  Boston  Connecticut  Road  Island  New  York  New 
Jersey,  Pensilvania,  Maryland,  Virginia  and  Carolina  may  be  made  more 
usefull  to  the  Crowne,  and  one  anothers  peace  and  safty  with  an  universall 
concurrance. 

The  colonies  were  to  meet  by  their  stated  and  appointed  deputies  once  a 
year,  and  oftener  if  need  be,  during  the  war  which  then  raged  in  Europe  and 
involved  the  American  colonies  as  at  this  writing  it  does  the  American  States, 
and  in  times  of  peace  at  least  once  in  two  years,  "  to  debate  and  resolve  of  such 
measures  as  are  most  adviseable  for  their  better  understanding,  and  the  publick 
tranquility  and  safety ;  "  that  each  colony  was  to  be  represented  by  two  persons, 
as  Penn  was  careful  to  point  out,  "  well  qualified  for  sence  sobriety  and  sub- 
stance." These  were  to  compose  the  Congress,  as  the  assembly  was  to  be 
called,  of  twenty  persons,  to  be  under  the  presidency  of  the  King's  Commis- 
sioner—  who  was  to  be  in  this  case  the  Governor  of  the  colony  of  New  York, 
as,  according  to  the  plan,  the  Congress  was  to  meet  "  near  the  Center  of  the 
Colonies;  "  and  in  time  of  war  the  King's  Commissioner  was  to  be  commander 
of  the  colonial  quotas.  In  the  sixth  article  the  gist  of  the  plan  is  given,  and  of 
the  activities  of  the  deputies  it  is  said : 

That  their  business  shall  be  to  hear  and  adjust  all  matters  of  Complaint 
or  differences  between  Province  and  Province,  As  1st  where  persons  quit 
their  own  Province  and  goe  to  another,  that  they  may  avoid  their  just  debts 
tho  they  be  able  to  pay  them,  2d  where  offenders  fly  Justice,  or  Justice  can- 
not well  be  had  upon  such  offenders  in  the  Provinces  that  entertaine  them, 
3dly  to  prevent  or  cure  injuries  in  point  of  commerce,  4th,  to  consider  of 
ways  and  means  to  support  the  union  and  safety  of  these  Provinces  against 
the  publick  enemies.  In  which  Congresse  the  Quotas  of  men  and  charges 
will  be  much  Easier,  and  more  equally  sett,  then  it  is  possible  for  any  estab- 
lishment made  here  [in  England]  to  do ;  for  the  Provinces,  knowing  their  own 
condition  and  one  anothers,  can  debate  that  matter  with  more  freedome  and 
satisfaction  and  better  adjust  and  ballance  their  affairs  in  all  respects  for 
their  common  safty.1 

In  this  plan  we  have  a  forerunner  of  the  Continental  Congress,  for  it  is  to 
embrace  all  English  colonies  in  the  "  North  parts  of  America."  Congress  it 
is  called,  and  it  is  provided  with  a  presiding  officer. 

With  unerring  instinct  Penn  laid  his  finger,  in  this  first  of  federal  projects 
for  the  English-speaking  colonies  of  the  continent,  on  what  was  in  fact  the 
object  of  the  American  .revolution,  the  better  government  of  themselves  and 
the  safeguarding  of  their  interests  by  the  colonials  in  America,  rather  than  by 

1  William  Perm's  Plans  for  a  Union  of  the  Colonies,  8th  February,  1696-97,  The  Penn- 
sylvania  Magazine  of  History  and  Biography,  Vol.  xi,  1887,  p.  496. 


RISE   OF   THE    IDEA   OF    UNION  11 

the  English  in  England.  Here  again  it  will  be  observed  that  each  colony, 
irrespective  of  size  or  population,  has  an  equal  voice  and  an  equal  number  of 
representatives,  and  here  again  the  number  is,  as  in  the  New  England  Con- 
federation and  in  the  Constitution  of  the  United  States,  two  for  each  Colony 
or  State.  As  in  the  case  of  the  Confederation,  it  is  not  meant  to  suggest  that 
Penn's  plan  gave  birth  to  our  instrument  of  government,  but  as  the  articles  of 
the  New  England  Confederation  show  the  advantages  of  union  for  their  gen- 
eral welfare,  so  this  plan  shows,  on  the  part  of  an  enlightened  Englishman,  the 
method  which,  put  into  practice,  might  have  made  of  the  colonies  great,  self- 
governing  dominions,  as  is  Canada  today  to  the  north  of  the  great  Republic. 

The  next  proposal  which  can  be  said  to  have  had  an  important  influence 
upon  the  destinies  of  the  colonies  was  made  in  1753  by  Great  Britain,  which 
viewed  with  alarm  and  apprehension  the  encroachments  of  France  in  America, 
and  which  therefore  directed  the  Governors  of  the  American  colonies  to  ap- 
point delegates  to  a  Congress  which  was  to  meet  at  a  time  and  a  place  to  be 
fixed  by  the  Governor  of  New  York,  in  order  to  treat  with  the  Six  Nations  of 
Indians  of  that  colony,  to  secure  their  alliance  in  case  of  war  with  France  and 
to  concert  measures  against  that  power.  This  body,  called  the  Albany  Con- 
gress from  the  name  of  the  place  in  which  it  assembled,  was  composed  of  dele- 
gates from  seven  colonies  and  met  on  June  19,  1754.  There  were  present  four 
delegates  from  New  Hampshire,  five  from  Massachusetts,  two  from  Rhode 
Island,  three  from  Connecticut,  five  from  New  York,  four  from  Pennsylvania, 
and  two  from  Maryland. 

There  was,  from  the  opening  of  the  Congress,  a  strong  sentiment  in  favor 
of  a  union  of  the  Colonies,  which  on  the  24th  was  unanimously  declared  "  at 
present  absolutely  necessary  for  their  security  and  defence."1  A  committee 
of  one  from  each  of  the  seven  colonies  present  was  appointed  to  prepare  a 
plan  of  union.  On  July  9th,  Dr.  Franklin,  who  represented  Pennsylvania,  was  benjamin  Frank- 
"  desired  to  make  a  draught  of  it."  2  On  the  following  day  a  draft  of  Union, 
largely  drawn  by  him,  was  presented  and  adopted,  and  on  July  11,  1754.  the 
Congress  adjourned. 

By  the  "Albany"  or  "Dr.  Franklin's"  plan  of  union  (it  is  known  by 
either  name),  the  Union  was  to  consist  of  all  the  British  colonies  in  North 
America,  with  the  exception  of  Georgia,  which  had  been  but  recently  founded, 
of  Delaware,  which  was  not  yet  independent  of  Pennsylvania,  and  of  Vermont, 
which  was  not  yet  a  distinct  colony.  The  purpose  of  the  Union  was  stated  to 
be  "  for  their  mutual  Defence  and  Security,  and  for  extending  the  British  Set- 
tlements in  North  America."  The  method  by  which  the  union  was  to  be 
effected  is  thus  set  forth  : 

1  Documents  Relative  to  the  Colonial  History  of  the  State  of  New  York,  J.  R.  Brodhcad 
ed.,  1855,  Vol.  vi,  p.  859. 
-Ibid.,  p.  885. 


12  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

That  humble  application  be  made  for  an  Act  of  the  Parliament  of  Great 
Brittain,  by  virtue  of  which,  one  General  Govern'  may  be  formed  in  America, 
including  all  the  said  Colonies,  within,  and  under  which  Govern'  each  Colony 
may  retain  each  present  constitution,  except  in  the  particulars  wherein  a 
change  may  be  directed  by  the  said  Act,  as  hereafter  follows.1 

The  government  of  the  union  was  to  consist  of  a  President-General,  ap- 
pointed by  the  Crown,  and  a  Grand  Council,  chosen  by  the  representatives  of 
the  people  of  the  several  colonies.  The  members  of  the  Grand  Council  were 
to  lie  appointed  by  the  House  of  Representatives  of  each  of  the  colonies,  but 
not  upon  a  footing  of  equality,  the  larger  colonies  having  a  larger  represen- 
tation, as  Franklin  says  in  his  interesting  commentary,  "  in  some  degree 
according  to  the  proportion  it  contributed  to  the  general  treasury."  2  Forty- 
eight  in  all  were  to  be  chosen,  of  which  the  then  largest  colonies,  Massachu- 
setts Bay  and  Virginia,  were  to  have  seven,  and  the  smallest,  New  Hampshire 
and  Rhode  Island,  two  each,  the  members  of  the  council  meeting  for  the  first 
time  in  the  city  of  Philadelphia  upon  the  call  of  the  President-General. 

The  members  thus  selected  were  to  sit  for  a  period  of  three  years,  the  num- 
ber of  delegates  allowed  each  colony  was  to  be  revised  after  the  first  three 
years  of  the  union,  and  "  from  time  to  time,  in  all  ensuing  elections,"  to  be 
based  upon  "  the  proportion  of  money  arising  out  of  each  colony  to  the 
general  treasury."  The  council  thus  composed  was  to  meet  yearly,  and  oftener 
if  required,  at  such  time  and  at  such  place  as  agreed  to  before  adjournment, 
or  in  case  of  emergency,  as  was  to  be  determined  by  the  President-General 
upon  the  written  consent  of  seven  members  of  the  council  "  with  due  and 
timely  notice  to  the  whole."  The  council  itself  was  to  choose  its  speaker,  and 
it  was  neither  to  be  dissolved  nor  prorogued,  nor  to  sit  longer  than  six  weeks 
at  any  one  time,  without  their  own  consent  "  or  the  special  command  of  the 
crown."  The  members  were  to  be  allowed  ten  shillings  per  diem  during  their 
session  and  journey  to  and  from  the  place  of  meeting,  and  twenty  miles  were 
to  be  reckoned  a  day's  journey. 

The  assent  of  the  President-General  was  necessary  to  all  acts  of  the  Council 
which  he  should  execute  and  he  was  authorized,  in  words  which  suggest  the 
language  of  that  greater  instrument  in  whose  framing  the  author  of  the  Albany 
plan  subsequently  took  part,  "  with  the  advice  of  the  Grand  Council  "  to  make 
treaties  with  the  Indians  and  also  to  declare  peace  or  war  with  Indian  nations. 
The  President  and  Council  were  to  regulate  trade  with  the  Indians,  to  act  for 
the  Crown,  which  henceforth  was  to  be  the  sole  purchaser  of  lands  from  the 
Indians,  to  grant  settlements  "  till  the  crown  shall  think  fit  to  form  them  into 
particular  governments."     The  President  and  Council  were  likewise  to  raise 

'■Documents  Relative  to  the  Colonial  History  of  New  York,  Vol.  vi,  p.  889. 

2  A.  11.  Smyth,  The  Writings  of  Benjamin  Franklin  (New  York,  the  Macmillan  Company, 
1907),  Vol.  iii,  p.  212.  See  also  Jared  Sparks,  The  Works  of  Benjamin  Franklin,  Vol.  iii, 
p.  41. 


RISE    OF   THE    IDEA   OF    UNION  13 

soldiers  and  build  forts,  to  equip  vessels  for  their  defense  and  the  protection  of 
their  trade,  but  not  to  "  impress  men  in  any  colony,  without  the  consent  of  the 
legislature."  For  these  purposes  the  President-General  and  the  Council  were 
empowered  "  to  make  laws,  and  lay  and  levy  such  general  duties,  imposts,  or 
taxes,  as  to  them  shall  appear  most  equal  and  just  (considering  the  ability  and 
other  circumstances  of  the  inhabitants  in  the  several  colonies),  and  such  as  may 
be  collected  with  the  least  inconvenience  to  the  people ;  rather  discouraging 
luxury,  than  loading  industry  with  unnecessary  burthens." 

Provision  was  made  for  the  appointment  of  a  general  and  a  particular 
treasurer  when  necessary,  with  the  proviso  that  no  money  was  to  be  paid  out 
except  "  by  joint  orders  of  the  President-General  and  Grand  Council  "  and  in 
pursuance  of  law,  and  that  accounts  were  to  be  yearly  settled  and  reported  to 
the  assemblies  of  the  different  colonies. 

The  quorum  for  the  Grand  Council  was  fixed  at  twenty-five  members,  pro- 
vided there  be  a  representative  from  the  majority  of  the  colonies.  The  Presi- 
dent-General and  the  Grand  Council  were  a  law-making  body,  and  the  article 
on  this  important  head  reads : 

That  the  laws  made  by  them  for  the  purposes  aforesaid  shall  not  be 
repugnant,  but,  as  near  as  may  be,  agreeable  to  the  laws  of  England,  and 
shall  be  transmitted  to  the  King  in  Council  for  approbation,  as  soon  as  may 
be  after  their  passing;  and  if  not  disapproved  within  three  years  after  presen- 
tation, to  remain  in  force.1 

In  case  of  the  death  of  the  President-General  the  speaker  of  the  Grand  Council 
was  to  act  "  till  the  King's  pleasure  be  known." 

The  provision  concerning  the  officers  is  interesting,  as  this  in  one  respect 
suggests  the  device  of  a  later  plan  of  union,  in  that  all  military  and  naval 
officers  "  to  act  under  this  general  constitution  "  were  to  be  nominated  by  the 
President-General  with  the  approval  of  the  Grand  Council.  But  civilian  offi- 
cers were  themselves  to  be  nominated  by  the  Council  and  to  receive  the  Presi- 
dent-General's approbation  before  entering  upon  the  performance  of  their 
duties.  It  was  foreseen  that  vacancies  would  occur  either  by  death  or  removal 
of  the  military  and  civil  officers  appointed  under  this  Constitution,  and  it  was 
therefore  provided  that  the  Governor  of  the  province  should  appoint  others  in 
their  place  "  until  the  pleasure  of  the  President-General  and  Grand  Council  can 
be  known."  Here  again  there  is  a  suggestion  of  appointments  to  be  made  sub- 
ject to  the  confirmation  of  the  grand  council  known  as  the  Senate  of  the  United 
States. 

The  plan  ended  with  a  very  important  provision,  safeguarding  the  colonies 

against  usurpation  on  the  part  of  the  proposed  government,  for  the  military 

and  civil  establishments  in  each  colony  were  to  remain  "  in  their  present  state, 

the  general  constitution  notwithstanding,"  and  a  right  was  expressly  granted  to 

1  Smyth,  ibid.,  p.  223;  Sparks,  Vol.  iii,  p.  52. 


14  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

each  colony,  contrary  to  the  provisions  of  the  constitution,  to  defend  itself  on 
a  sudden  emergency  at  the  expense  of  the  union. 

Dr.  Franklin's  plan  was  premature.  The  colonies  did  not  as  yet  feel  the 
necessity  of  union  in  order  to  protect  themselves  against  what  they  regarded 
as  unjustifiable  oppression  on  the  part  of  the  mother  country,  and  they  were 
therefore  unwilling  to  make  what  they  were  pleased  to  call  the  concessions 
contained  in  the  Albany  plan.  The  home  authorities,  on  the  other  hand,  were 
apparently  not  ready  to  consolidate  their  colonial  empire  in  America,  and  in 
any  event  they  were  likewise  unwilling  to  make  the  concessions  to  self-govern- 
ment recommended  in  the  Albany  plan.  As  Dr.  Franklin  himself  said,  "  the 
Crown  disapproved  it,  as  having  too  much  Weight  in  the  Democratic  Part  of 
the  Constitution ;  and  every  Assembly  as  having  allowed  too  much  to  Preroga- 
tive. So  it  was  totally  rejected."  Many  years  after  the  Albany  Convention, 
and  two  years  after  the  adoption  of  the  Constitution  of  the  more  perfect  Union, 
the  venerable  Dr.  Franklin  recurred  to  the  Albany  plan  and  thus  expressed 
himself  concerning  the  results  which  in  his  opinion  would  have  followed,  had 
his  plan  of  Union  been  adopted: 

On  Reflection  it  now  seems  probable,  that  if  the  foregoing  Plan  or  some 
thing  like  it  had  been  adopted  and  carried  into  Execution,  the  subsequent 
Separation  of  the  Colonies  from  the  Mother  Country  might  not  so  soon  have 
happened,  nor  the  Mischiefs  suffered  on  both  sides  have  occurred  perhaps 
during  another  Century.  For  the  Colonies,  if  so  united,  would  have  really 
been,  as  they  then  thought  themselves,  sufficient  to  their  own  Defence,  and 
being  trusted  with  it,  as  by  the  Plan,  an  Army  from  Britain,  for  that  purpose 
would  have  been  unnecessary ;  The  Pretences  for  framing  the  Stamp  Act 
would  then  not  have  existed,  nor  the  other  projects  for  drawing  a  Revenue 
from  America  to  Britain  by  Act  of  Parliament,  which  were  the  Causes  of  the 
Breach  &  attended  with  such  terrible  Expense  of  Blood  and  Treasure ;  so 
that  the  different  Parts  of  the  Empire  might  still  have  remained  in  Peace  and 
Union.1 

By  1754  events  were  moving  rapidly.  The  man  who  was  destined  to  lead 
the  Revolutionary  armies  was  already  in  the  field  as  a  subaltern  in  the  French 
and  Indian  War,  which  is  the  name  by  which  the  Seven  Years'  War  of 
Europe  is  known  in  America.  Franklin,  who  was  to  render  hardly  less  dis- 
tinguished service  to  his  age,  typified  American  thinking  at  its  best.  The  con- 
quest of  Canada  had  given  Great  Britain  an  unbroken  domain  from  the  Gulf 
of  Mexico  northward.  The  Treaty  of  Peace  had  left  a  clear  title  to  the  terri- 
tory from  the  Atlantic  Ocean  to  the  Mississippi  River,  with  only  Spain  to  the 
west  of  that  water.  The  times  seemed  ripening  for  a  uniform  system  of 
government.  There  was  no  longer  a  formidable  enemy  threatening  the  exist- 
ence of  the  colonies  from  without;  the  home  authorities  felt  that  henceforth 

1  A.  H.  Smyth,  The  Writings  of  Benjamin  Franklin,  Vol.  iii,  p.  226  note. 


RISE   OF   THE   IDEA   OF    UNION  15 

they  were  to  have  a  free  hand  in  moulding  the  colonies  to  their  will,  and  the 
servants  of  the  Crown  had  begun  to  put  the  imperial  house  in  order. 

Without  indulging  in  criticism  of  the  Crown  and  its  advisors,  and  without  vlewT^  imperial 
commendation  of  the  colony  and  its  advocates,  it  was  not  unreasonable,  from  andCoIomaI 
the  standpoint  of  the  mother  country,  that  the  colonies  should  be  subjected  to 
a  centralized  control,  that  they  should  contribute  to  their  own  support,  that 
they  should  be  made  to  feel  that  they  were  an  integral  portion  of  the  empire, 
and  that  therefore  they  should  assume  their  share  of  the  imperial  burden,  to  be 
determined  by  the  imperial,  not  by  the  colonial,  authorities.  Nor  were  the 
views  of  the  colonists  unreasonable  from  their  own  point  of  view,  in  that  they 
had  opened  up  and  settled  the  New  World,  that  they  had  brought  with  them 
the  common  law  and  the  rights  of  Englishmen,  that  they  were  not  only  inher- 
ently entitled  to  the  blessings  of  local  government,  but  that  they  deserved  such 
government  by  the  services  they  had  rendered,  and  that,  while  far  from  unwill- 
ing to  perform  their  full  duty  to  the  empire,  they  nevertheless  believed  that 
the  money  raised  by  taxing  them  should  be  spent  in  America  in  accordance 
with  their  judgment  and  that  they  themselves  should  determine  what  their 
contributions  should  be,  instead  of  having  them  determined  by  authorities 
across  the  seas,  before  whom  they  were  not  represented,  and  whose  action  they 
could  neither  influence  nor  control.  The  home  government  looked  at  the 
colonies  from  the  standpoint  of  the  past,  as  though  they  existed  for  the  benefit 
of  the  home  country  and  that  the  home  authorities  were  naturally  superior  to 
them.  The  colonies,  on  the  other  hand,  looked  at  their  relations  with  die 
mother  country  from  the  standpoint  of  the  future,  in  which  they  were  to  be 
integral  parts  of  a  great  empire  and  in  the  economy  of  which  they  were  to  be 
practically  self-governing  dominions,  united  by  language,  tradition,  and  en- 
lightened interest,  but  in  which  there  was  to  be  no  mark  or  suggestion  of  in- 
feriority.    The  new  wine  broke  the  old  bottles. 

It  was  foreseen  that  the  adoption  of  a  Declaration  of  Independence  would  Foresight 
necessitate  some  form  of  general  government,  because,  in  the  opinion  of  the 
colonists,  such  a  Declaration  would  break  the  bonds  of  allegiance  to  England, 
create  of  the  erstwhile  colonies  free  and  independent  States,  and  in  the  ab- 
sence of  a  superior  they  would  be  obliged  to  devise  some  form  of  agreement 
and  cooperation ;  otherwise  their  efforts  would  be  unavailing.  It  was  further 
foreseen  by  some  in  the  Congress  that  the  resort  to  arms  would  lead  inevitably 
to  independence,  and  that  some  agreement  upon  a  union  and  a  method  of  gov- 
ernment should  precede  any  declaration  as  it  would  inevitably  have  to  follow  it. 
The  shrewdest  mind  in  the  country,  and  therefore  in  the  Congress,  was,  it 
need  hardly  be  said,  Benjamin  Franklin,  and  he  was  ready  with  a  "  plan  "  in 
1775  as  he  had  been  ready  with  a  plan  of  union  twenty-one  years  earlier  at 
the  first  Congress  of  the  colonies  at  Albany.     Therefore,  on  July  21,  1775,  he 


16  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

laid  his  second  plan  before  Congress,  providing  for  a  union  of  the  colonies, 
soon  to  be  independent  States.1     But  the  Congress,  apparently,  did  not  then 
measure  aright  the  consequences  of  standing  by  Massachusetts  in  its  armed 
resistance. 
sJco'nl Plan  s  Dr.  Franklin's  plan  provided  for  the  union  of  the  colonies  for  purposes  of 

resistance  against  Great  Britain,  but  apparently  contemplated  the  possibility 
of  a  redress  of  grievances  and  a  reconciliation  with  the  mother  country,  where- 
upon the  colonies  were  to  "  return  to  their  former  connexion  and  friendship 
with  Britain."  It  was,  however,  foreseen  by  the  venerable  statesman,  because 
of  his  intercourse  with  British  men  of  affairs  and  his  knowledge  of  the  British 
people,  that  the  reconciliation  might  not  take  place,  and  the  last  clause  of  his 
plan  therefore  runs:  "But  on  Failure  thereof  this  Confederation  is  to  be 
perpetual."  2 

Notwithstanding  the  fact  that  his  project  was  one  primarily  for  colonies, 
not  for  States,  the  union  which  he  proposed  was  of  a  very  close  nature,  and 
would  have  rested  upon  the  people  rather  than  upon  the  colonies,  although  the 
rights  of  the  colonies  as  such,  or  rather  of  the  people  within  the  colonies,  were 
safeguarded.  For  example,  there  was  to  be  a  general  congress,  composed  of 
delegates  selected  by  each  colony,  but  the  number  thereof  for  each  was  to  de- 
pend upon  the  population  of  the  colony,  and  a  delegate  was  to  be  allowed  for 
every  five  thousand  male  inhabitants,  or,  as  the  good  Doctor  put  it,  "  male 
polls  between  sixteen  and  sixty  years  of  age."  The  congress  composed  in  this 
way  would  not  represent  solely  the  colonies  but  the  people  who  happened  to 
reside  within  their  territorial  limits,  and  as  the  Congress  was  therefore  the 
representative  of  the  people  it  was  natural  that  the  Congress  should  be  em- 
powered to  provide  for  the  general  welfare  and  to  enact  laws  for  this  purpose. 
It  was  to  be  the  power  and  the  duty  of  Congress,  by  Article  V,  to  pass  upon 
questions  of  war  and  peace,  to  send  and  to  receive  ambassadors  and  to  con- 
tract alliances,  to  settle  all  disputes  and  differences  between  the  colonies,  and, 
apparently,  as  an  afterthought,  for  it  is  in  brackets,  to  bring  about  "  (the  recon- 
ciliation with  Great  Britain)."  The  Congress  also  was,  in  Dr.  Franklin's  lan- 
guage, to  plant  new  colonies  when  proper.  It  was  also  to  make  "  such  general 
ordinances  as,  though  necessary  to  the  general  welfare,  particular  Assemblies 
cannot  be  competent  to,"  and  among  these  he  specified  "  those  that  may  relate 
to  our  general  commerce,  or  general  currency;  the  establishment  of  posts;  and 
the  regulation  of  our  common  forces."  The  Congress  also  was  to  appoint 
"  all  general  officers  civil  and  military,  appertaining  to  the  general  confederacy, 
such  as  general  treasurer,  secretary,  &c."  As  representation  in  the  Congress 
was  to  be  based  upon  population,  not  upon  the  colonies  as  such,  it  was  natural 

1  Smyth,  Writings  of  Benjamin  Franklin,  Vol.  vi,  p.  420;  Sparks,  Vol.  v,  p.  91. 

2  Smyth,  p.  425 ;  Sparks,  p.  96. 


RISE   OF   THE    IDEA   OF    UNION  17 

that  the  inhabitants  having  the  largest  representation  should  also  bear  a  larger 
proportion  of  the  burdens  of  government.  Therefore,  charges  of  war,  "  and 
all  other  general  expenses  to  be  incurred  for  the  common  welfare  "  were  to  be 
"  defrayed  out  of  a  common  treasury  ...  to  be  supplied  by  each  colony  in 
proportion  to  its  number  of  male  polls  between  sixteen  and  sixty  years  of  age," 
and  the  proportion  of  each  colony  was  "  to  be  laid  and  levied  by  the  laws  of 
each  colony." 

As  still  further  showing  the  continental  as  distinct  from  the  colonial  idea, 
the  quorum  of  the  Congress  was  to  consist  of  "  one  half  of  the  members,"  and 
in  the  Congress  itself  and  in  the  transaction  of  business  each  delegate  was  to 
"  have  a  vote  in  all  cases."  The  delegates  to  the  Congress  were  to  be  elected 
annually  and  to  meet  at  such  time  and  place  as  should  be  agreed  to  in  the  next 
preceding  Congress  by  rotation  in  the  different  colonies.  In  addition  there 
was  to  be  an  executive  council,  appointed  by  the  Congress  out  of  its  own  body, 
to  consist  of  twelve  persons,  and  which  was  apparently  to  represent  the  Con- 
gress during  its  recess,  "  to  execute  what  shall  have  been  enjoined  thereby;  to 
manage  the  general  Continental  business  and  interests ;  to  receive  applications 
from  foreign  countries ;  to  prepare  matters  for  the  consideration  of  the  Con- 
gress; to  fill  up,  pro  tempore,  continental  offices  that  fall  vacant;  and  to  draw 
on  the  general  treasurer  for  such  moneys  as  may  be  necessary  for  general 
services,  appropriated  by  the  Congress  to  such  services." 

It  has  been  stated  that  the  existence  of  the  colonies  was  recognized,  al- 
though they  were  not  made  the  basis  of  representation  and  they  were  appar- 
ently to  be  denied  an  equal  share  in  providing  for  the  general  welfare,  for 
which  purpose  the  plan  of  government  was  proposed.  Dr.  Franklin's  further 
views  are  set  forth  in  the  third  Article,  which  reads : 

That  each  Colony  shall  enjoy  and  retain  as  much  as  it  may  think  fit  of  its 
own  present  Laws,  Customs,  Rights,  Privileges,  and  peculiar  jurisdictions 
within  its  own  Limits ;  and  may  amend  its  own  Constitution  as  shall  seem  best 
to  its  own  Assembly  or  Convention.1 

The  plan  in  all  its  parts  displays  not  merely  a  keen  and  penetrating  mind 
but  shows  its  author  to  be  a  resident  of  a  large  and  populous  State,  which 
could  safely  entrust  its  interest  to  a  general  assembly  in  the  full  knowledge  that 
its  greatness,  its  extent  and  its  power  would  secure  it  an  ample  return  for  the 
concessions,  always  more  specious  than  real,  of  great  bodies  and  of  great 
persons.  The  little  States  apparently  did  not  take  kindly  to  the  plan  of  the 
great  Doctor;  for  although  read  by  its  author  to  the  Congress  on  July  21, 
1775,  it  was  neither  adopted  nor  considered.  There  is  no  record  in  the  Journal 
of  the  Congress  of  its  having  been  read,  and  indeed  the  only  testimony  we 
have  to  that  effect  is  the  endorsement  in  Dr.  Franklin's  hand  that  it  was  read 
1  Smyth,  ibid.,  p.  421 ;  Sparks,  Vol.  v,  p.  92. 


18  THE    UNITED   STATES!    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

before  Congress  on  the  stated  date.  It  is  mentioned,  however,  in  this  connec- 
tion, for  a  twofold  reason:  to  show  that  in  July,  1775,  a  shrewd  man  of  the 
world,  who  had  suffered  indignities  at  the  hands  of  the  British  Government, 
was  contented  with  a  temporary  union  of  the  colonies,  in  the  hope  of  a  recon- 
ciliation with  the  mother  country  instead  of  advocating  separation  from  Great 
Britain,  and  because  Dr.  Franklin's  text  seems  to  have  been  known  to  his 
friend  and  colleague  John  Dickinson,  who  a  year  later,  as  chairman  of  the 
committee  formed  for  that  purpose,  prepared  and  presented  a  draft  of  the 
Articles  of  Confederation,  after  the  independence  of  the  colonies  had  been 
proclaimed. 


II 

INDEPENDENCE  DECLARED 

The  archbishop  of  Canterbury  (Laud)  kept  a  jealous  eye  over  New-England.  One 
Burdett  of  Piscataqua  was  his  correspondent.  A  copy  of  a  letter  to  the  archbishop  wrote 
by  Burdett  was  found  in  his  study  and  to  this  effect,  viz.  "  That  he  delayed  going  to  Eng- 
land that  he  might  fully  inform  himself  of  the  state  of  the  place  as  to  allegiance,  for  it  was 
not  new  discipline  which  was  aimed  at  but  sovereignty,  and  that  it  was  accounted  perjury 
and  treason  in  their  general  court  to  speak  of  appeals  to  the  King."  (Thomas  Hutchinson, 
The  History  of  the  Colony  of  Massachuscts-Bay,  Vol.  I,  1764,  p.  86.) 

There  were  no  reason  that  one  man  should  take  upon  him  to  be  lord  or  judge  over 
another;  because,  although  there  be  according  to  the  opinion  of  some  very  great  and  judicious 
men  a  kind  of  natural  right  in  the  noble,  wise,  and  virtuous,  to  govern  them  which  are 
of  servile  disposition;  nevertheless  for  manifestation  of  this  their  right,  and  men's  more 
peaceable  contentment  on  both  sides,  the  assent  of  them  who  are  to  be  governed  seemeth 
necessary.  (Richard  Hooker,  Of  the  Laws  of  Ecclesiastical  Polity,  1594,  Church  edition, 
1868,  Book  I,  Section  10,  p.  54.) 

For  there  are  no  Examples  so  frequent  in  History,  both  sacred  and  prophane,  as  those 
of  Men  withdrawing  themselves,  and  their  Obedience,  from  the  Jurisdiction  they  were  born 
under,  and  the  Family  or  Community  they  were  bred  up  in,  and  setting  up  new  Govern- 
ments in  other  Places;  from  whence  sprang  all  that  number  of  petty  Commonwealths  in 
the  Beginning  of  Ages,  and  which  always  multiplied,  as  long  as  there  was  room  enough, 
till  the  stronger,  or  more  fortunate,  swallowed  the  weaker ;  and  those  great  ones  again 
breaking  to  Pieces,  dissolved  into  lesser  Dominions.  (John  Locke,  Two  Treatises  of  Gov- 
ernment, 1690,  Book  II,  Ch.  VIII,  section  113,  Works,  Edition  of  1714,  Vol.  II.) 

Thus,  though  looking  back  as  far  as  Records  give  us  any  account  of  peopling  the  World, 
and  the  History  of  Nations,  we  commonly  find  the  Government  to  be  in  one  Hand;  yet 
it  destroys  not  that  which  I  affirm,  viz.  That  the  Beginning  of  politick  Society  depends 
upon  the  Consent  of  the  Individuals,  to  joyn  into,  and  make  one  Society ;  who,  when  they 
are  thus  incorporated,  might  set  up  what  Form  of  Government  they  thought  fit.  (John 
Locke,  Two  Treatises  of  Government,  1690,  Book  II,  Ch.  VIII,  section  106,  Works,  Edition  of 
17 14,  Vol.  II.) 

Men  being,  as  has  been  said,  by  Nature,  all  free,  equal,  and  independent,  no  one  can 
be  put  out  of  this  Estate,  and  subjected  to  the  political  Power  of  another,  without  his 
own  Consent.  The  only  Way  whereby  any  one  devests  himself  of  his  natural  Liberty, 
and  puts  on  the  Bonds  of  civil  Society  is  by  agreeing  with  other  Men  to  joyn  and  unite 
into  a  Community,  for  their  comfortable,  safe,  and  peaceable  Living  one  amongst  another, 
in  a  secure  Enjoyment  of  their  Properties,  and  a  greater  Security  against  any,  that  are 
not  of  it.  (John  Locke,  Two  Treatises  of  Government,  1600,  Book  II,  Ch.  VIII,  section 
P5,  Works,  Edition  of  1714,  Vol.  II.) 

Section  1.  That  all  men  are  by  nature  equally  free  and  independent,  and  have  certain 
inherent  rights,  of  which,  when  they  enter  into  a  state  of  society,  they  cannot,  by  any 
compact,  deprive  or  divest  their  posterity, ;  namely,  the  enjoyment  of  life  and  liberty,  with 
the  means  of  acquiring  and  possessing  property,  and  pursuing  and  obtaining  happiness  and 
safety. 

Sec  2.  That  all  power  is  vested  in,  and  consequently  derived  from,  the  people ;  that 
magistrates  are  their  trustees  and  servants,  and  at  all  times  amenable  to  them. 

Sec.  3.  That  government  is,  or  ought  to  be,  instituted  for  the  common  benefit,  protection, 
and  security  of  the  people,  nation,  or  community;  of  all  the  various  modes  and  forms  of 
government,  that  is  best  which  is  capable  of  producing  the  greatest  degree  of  happiness  and 
safety,  and  is  most  effectually  secured  against  the  danger  of  maladministration;  and  that, 
when  any  government  shall  be  found  inadequate  or  contrary  to  these  purposes,  a  majority 
of  the  community  hath  an  indubitable,  inalienable,  and  indefeasible  right  to  reform,  alter, 
or  abolish  it,  in  such  manner  as  shall  be  judged  most  conducive  to  the  public  weal.  (Virginia 
Bill  of  Rights  adopted  lune  12,  1776.    Ben:  Perley  Poore,  The  Federal  and  State  Constitu- 

19 


20  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL  ORGANIZATION 

tions,  Colonial  Charters,  and  other  Organic  Laws  of  the  United  States,  Part  II,  1S77,  pp. 
1008-1909.) 

We.  therefore,  the  Representatives  of  the  united  States  of  America,  in  General  Congress, 
Assembled,  appealing  to  the  Supreme  Judge  of  the  world  for  the  rectitude  of  our  intentions, 
do,  in  the  Name,  and  by  Authority  of  the  good  People  of  these  Colonies,  solemnly  publish 
and  declare,  That  these  United  Colonies  are,  and  of  Right  ought  to  be  Free  and  Independent 
States ;  that  they  are  Absolved  from  all  Allegiance  to  the  British  Crown,  and  that  all  political 
connection  between  them  and  the  State  of  Great  Britain,  is  and  ought  to  be  totally  dissolved ; 
and  that  as  Free  and  Independent  States,  they  have  full  power  to  levy  War,  conclude 
Peace,  contract  Alliances,  establish  Commerce,  and  to  do  all  other  Acts  and  Things  which 
Independent  States  may  of  right  do.  And  for  the  support  of  this  Declaration,  with  a  firm 
reliance  on  the  Protection  of  Divine  Providence,  we  mutually  pledge  to  each  other  our 
Lives,  our  Fortunes  and  our  sacred  Honor.  (The  unanimous  Declaration  of  Independence 
of  the  thirteen  united  States  of  America,  in  Congress,  July  4,  1776,  Rez<ised  Statutes  of  the 
United  States,  1878,  p.  5.) 

The  writer  whose  ideas  and  phrases  are  most  deeply  impressed  upon  American  political 
history  is,  beyond  all  doubt,  John  Locke.  It  is  not  difficult  to  explain  the  cause  of  his  great 
influence.  His  "Treatise  on  Government,"  published  in  1690,  was  a  justification  of  the 
Revolution  of  1688.  The  principles  of  that  Revolution,  as  expounded  by  him,  became  the 
orthodox  Whig  doctrine.  "His  treatise,"  says  Mr.  Leslie  Stephen,  in  his  able  "History  of 
English  Thought  in  the  Eighteenth  Century,"  "became  the  political  bible  of  the  following 
century."  Hallam  says  that  it  opened  a  new  era  of  political  opinion  in  Europe,  and  that 
the  theory  there  propounded  has  been  fertile  of  great  revolutions  and  perhaps  pregnant 
with  more. 

From  the  beginning  of  their  dispute  with  England,  the  colonists  found  themselves  fully 
sustained  by  the  great  Whig  philosopher.  What  could  be  more  acceptable  than  the  doctrine 
that  a  people  are  absolved  from  obedience  when  illegal  attempts  are  made  upon  their  liber- 
ties, and  that  it  is  then  their  duty  to  make  an  appeal  to  heaven?  When  the  colonics  in  1776 
formed  their  Bills  of  Rights,  the  great  authority  as  to  those  rights  was  Locke.  The  Bills 
of  Rights  of  Massachusetts,  Pennsylvania,  Maryland,  and  other  States  set  forth,  almost  in 
the  exact  language  of  Locke,  that  "  all  government  of  right  originates  from  the  people,  is 
founded  in  compact  only,  and  instituted  solely  for  the  good  of  the  whole." 

The  Declaration  of  Independence,  which  has  long  ago  been  apotheosized,  did  not  escape 
contemporary  criticism.  Adams  said  that  it  was  a  commonplace  compilation.  Richard 
Henry  Lee  charged  that  it  was  copied  from  Locke's  treatise  on  Government.  To  this 
charge  it  is  certainly  open.  All  those  truths  which  the  Declaration  holds  to  be  self-evident 
are  set  forth  with  just  as  much  clearness  and  force  in  Locke's  treatise.  (IV.  T.  Brantly, 
Of  the  Influence  of  European  Speculation  in  the  Formation  of  the  Federal  Constitution, 
18S0,  in  Southern  Law  Review,  New  Series,  Vol.   VI,  pp.  352-353-) 

The  doctrine  of  ithe  equality  of  all  men,  which  is  so  striking  in  the  Declaration,  was 
accepted  without  controversy.  This  acquiescence  was  partly  due  to  the  condition  of  the 
country  as  a  settlement  in  a  wilderness.  Before  the  Revolution,  a  common  characteristic  of 
all  the  colonies  was  the  essential  equality  of  the  people.  It  i-s  sometimes  said,  however, 
that  we  derived  the  doctrine  of  the  equality  of  mankind  from  a  French  source.  Sir  Henry 
Maine  observes,  in  his  "  Ancient  Law,"  that  the  opinions  then  fashionable  in  France 
led  Jefferson  to  join  what  he  denominates  the  specially  French  assumption,  that  all  men 
are  born  equal,  with  the  assumption,  more  familiar  to  Englishmen,  that  all  men  are  born 
free.  Mr.  Morley,  in  the  Fortnightly  Review  for  October,  1879.  declares  that  "nobody 
who  has  examined  so  much  as  the  surface  of  the  question  would  dream  of  denying  that  the 
French  theories  of  society  played  an  important  part  in  the  preparation  of  American  in- 
dependence." (IV.  T.  Brantly,  Of  the  Influence  of  European  Speculation  in  the  Formation 
of  the  Federal  Constitution,  1880,  in  Southern  Law  Review,  New  Series,  Vol.  VI.  pp. 
353-354-) 

It  is  true  that  Jefferson  afterwards  "'drank  a  deep  draught  from  the  intoxicating  cup 
of  the  French  Revolution,"  but  we  do  not  think  that  in  1776  he  had  felt  the  French 
political  influence.  He  was,  we  know,  a  student  of  Locke,  and  Locke  asserted  the  natural 
equality  of  man  as  strongly  as  his  natural  liberty.  In  Jefferson's  original  draft  of  the 
Declaration,  now  in  the  State  Department,  we  see  that  he  first  wrote  "  all  men  are  created 
equal  and  independent."  and  afterwards  erased  the  words  "  and  independent."  In  the 
second  chapter  of  the  "  Treatise  on  Government,"  Locke  says :  "  To  understand  political 
power  aright,  we  must  understand  what  state  men  are  naturally  in,  and  that  is  a  state 
of  perfect  freedom.  ...  A  state  also  of  equality.  ...  In  the  state  of  nature,  men  are  all 
equal  and   independent," — the  very  phrase  first  employed   by   Jefferson.     (IV.   T.  Brantly, 


INDEPENDENCE   DECLARED  21 

Of  the  Influence   of  European   Speculation   in   the   Formation  of  the  Federal   Constitution, 
1SS0,  in  Southern  Laze  Review,  New  Series,  Vol.  VI.  p.  354.) 

The  Declaration  of  Independence  is  singularly  suggestive  of  the  Virginia  Bill  of  Rights 
which  was  adopted  on  June  12,  1776.  They  are  both  streams  from  the  same  prolific  foun- 
tain. The  first  article  of  the  Virginia  Bill  declares,  "  that  all  men  are  by  nature  equally 
free  and  independent,  and  have  certain  inherent  rights  the  which,  when  they  enter  into 
a  state  of  society,  they  cannot,  by  any  compact,  deprive  or  divest  their  posterity, —  namely, 
the  enjoyment  of  life  and  liberty  with  the  means  of  acquiring  and  possessing  property 
and  pursuing  and  obtaining  happiness  and  safety."  The  Virginia  Bill  was  the  work  of 
George  Mason,  a  man  deeply  versed  in  English  parliamentary  history,  but  who  was  not 
indebted  for  any  of  his  opinions  to  French  literary  men.  (IV.  T.  Brantly,  Of  the  Influence 
of  European  Speculation  in  the  Formation  of  the  Federal  Constitution,  1S80,  in  Southern 
Laiv  Review,  New  Series,  Vol.  VI.  p.  354.) 

The  origin  of  the  idea  of  a  state  of  nature  wherein  all  men  are  equal  has  been  traced  to 
the  Roman  lawyers.  Locke  received  it  from  Hobbes  and  Grotius.  But  it  was  so  stamped 
with  the  authority  of  the  Whig  philosopher  that  it  colored  all  the  political  thinking  of  the 
last  century  in  America.  The  conception  of  man  as  the  signatary  of  a  social  compact  is 
an  absurd  one,  and  has  long  since  fallen  into  disrepute  with  the  best  thinkers.  Hume's 
refutation  of  the  theory  is  complete,  but  it  is  not  without  advocates  at  the  present  day.  Sir 
Henry  Maine  is  astonished  at  the  extraordinary  vitality  of  this  speculative  error.  The 
circumstance  that  the  Bills  of  Rights  of  so  many  of  these  States  continue  to  assert  in 
terms  that  all  government  is  founded  in  compact,  may  serve  to  show  us  that  the  value 
of  a  sonorous  maxim  in  politics  is  not  proportioned  to  its  credit  with  philosophers.  (IV.  T. 
Brantly,  Of  the  Influence  of  European  Speculation  in  the  Formation  of  the  Federal  Con- 
stitution, 1SS0,  in  Southern  Law  Review,  New  Series,  Vol.   VI.  pp.  357-358.) 

That  there  were  thirteen  colonies,  with  separate  governments  in  each,  without  any  control 
by  one  over  another,  is  admitted ;  that  they  assembled  by  different  representations ;  that  they 
voted,  acted,  and  signed  the  declaration  by  their  separate  delegates,  is  apparent  on  the 
journals  of  congress,  and  the  face  of  the  paper.  The  members  who  assembled  as  the 
delegates  of  colonies,  were  the  same,  who,  as  the  representatives  of  the  states,  made  the 
declaration  in  the  name,  and  by  the  authority  of  the  good  people  of  these  colonies  ;  which 
was : — "  That  these  united  colonies  are,  and  of  right  ought  to  be,  free  and  independent  states." 
(Mr.  lustice  Baldwin,  A  General  View  of  the  Origin  and  Nature  of  the  Constitution 
and  Government  of  the  United  States,  1837,  p.  78.) 


CHAPTER  II 


INDEPENDENCE    DECLARED 


The   Funda- 
mental Right 


Colonial 
View 


Imperial 
View 


On  July  4,  1776,  the  representatives  of  the  United  States  of  America  in 
Congress  assembled  proclaimed  their  independence  in  a  declaration  setting 
forth  the  right  and  the  duty  of  all  peoples  to  organize  themselves  into  nations, 
with  governments  of  their  own  choice,  to  change  those  forms  of  government 
when  they  have  not  subserved  the  purpose  for  which  they  were  created  by 
the  peoples,  and  submitted  facts  to  a  candid  world  justifying  the  Declaration 
of  Independence  in  their  particular  case.  With  the  facts  submitted  by  the 
Congress  to  a  candid  world  we  are  not  here  concerned.  We  are,  however, 
concerned  with  the  right  to  set  up  a  government  for  themselves,  which  the 
signers  of  the  Declaration  asserted,  claimed  and  exercised.  For,  if  the  right 
exist,  its  exercise  becomes  a  matter  of  expediency,  and  the  facts  merely  the 
cause  or  pretext  of  its  exercise  by  peoples  bent  on  exercising  the  right. 

Before  dealing  with  this  matter,  it  is  advisable  to  advert  to  the  state  of 
things  which  produced  the  Declaration  and  called  into  being  the  United  States 
of  America.  The  thirteen  American  colonies  forming  the  original  thirteen 
United  States  and  extending  from  Florida,  on  the  south,  to  Canada,  on  the 
north,  were  either  settled  originally  by  British  subjects  or  had  passed  into  the 
possession  of  Great  Britain.  These  colonies,  whether  under  a  charter  such  as 
Connecticut ;  under  a  charter  to  a  proprietor  as  in  the  case  of  Maryland ;  or 
governed  directly  as  a  province  by  the  crown  as  Virginia,  claimed  the  right 
of  local  self-government  by  means  of  assemblies  of  their  own  choice;  for,  to 
quote  Sir  John  Seeley,  "  assemblies  were  not  formally  instituted,  but  grew  up 
of  themselves,  because  it  was  the  nature  of  Englishmen  to  assemble."  l 
Recognizing  themselves  as  subjects  of  the  mother  country,  provided  such 
regulation  was  external  and  they  were  left  to  settle  their  internal  affairs  as 
seemed  to  them  to  be  just  in  view  of  local  conditions,  with  which  they  were 
familiar  and  of  which  they  felt  that  the  mother  country  was  not  cognizant, 
naturally,  the  colonists  looked  at  their  relations  with  the  mother  country  from 
the  colonial  point  of  view.  The  recognition  that  there  was  a  mother  country 
implied  another  point  of  view,  which  did  in  fact  exist. 

Great  Britain  held  that  the  colonists  were  British  subjects  and  possessed 
of  the  rights  and  liberties  of  such;  that  the  colonists  could  have  no  greater 
rights  than  British  subjects,  and  that,  as  such,  they  were  subject  to  the  Crown, 
the  Parliament,  or  both,  as  were  their  fellow-countrymen  of  Great  Britain; 
that  the  colonies  were,  as  trading  companies  and  bodies  politic,  entitled  to 

1  Sir  John  Robert  Seeley,  The  Expansion  of  England,  1883,  p.  67. 

22 


INDEPENDENCE   DECLARED  23 

make  laws  within  the  charter  but  not  ultra  vires,  and  therefore  subordinated 
to  the  law  antl  the  control  of  their  creator;  that,  as  colonists,  they  were  subject 
to  the  burdens  of  the  empire,  as  were  their  fellow-countrymen  at  home,  and 
as  colonies  they  -were  subject  to  regulation  and  control,  internal  as  well  as 
external ;  that  the  nature  and  extent  of  the  duties  to  be  imposed  upon  the 
colonists  and  the  supervision  and  control  of  the  colonies  were  matters  of 
expediency,  to  be  determined  by  the  King,  Lords  and  Commons  of  Great 
Britain,  the  supreme  authority  in  all  matters  domestic,  colonial,  foreign.  As 
was  natural,  the  mother  country  looked  upon  its  relations  with  the  colonies 
from  the  standpoint  of  the  empire. 

The  colonists,  if  admitting  these  rights  in  point  of  law,  were  unwilling  to 
allow  the  mother  country  to  exercise  them  in  fact  or  to  determine  the  matter 
of  expediency.  The  mother  country,  possessing  the  rights,  was  unwilling  to 
allow  the  colonists  to  determine  the  expediency  of  their  exercise.  There  was 
no  indifferent  party  to  which  the  colonists  could,  or  to  which  the  mother  coun- 
try would,  submit  their  differences.  Each,  therefore,  appealed  eventually  to 
the  arbitrament  of  the  sword. 

To  obviate  the  resort  to  force  which  lurked  in  the  background,  the  colonists 
petitioned  the  Crown,  the  Parliament  and  the  people  of  Great  Britain  for  a 
redress  of  grievances,  and,  conscious  that  the  cause  of  each  was  the  cause  of 
every  colony,  a  congress  of  their  delegates  assembled  in  1774,  in  Philadelphia, 
just  as  Hutchinson  happily  said  that,  in  1619,  "  a  house  of  burgesses  broke 
out  in  Virginia."  This  assembly,  extending  beyond  the  confines  of  a  colony  coiS-es's""131 
and  affecting  the  destinies  of  a  continent,  they  aptly  called  a  Continental  Con- 
gress, and  the  first  of  these  bodies,  composed  of  representatives  of  all  the  col- 
onies, with  the  exception  of  Georgia,  met,  in  1774,  in  the  city  of  Philadelphia 
in  the  month  of  September. 

As  the  blow  which  threatened  all  the  colonies  had  first  fallen  in  Massa- 
chusetts, it  was  natural  that  that  province  should  have  taken  the  initiative. 
Therefore,  on  June  17,  1774,  one  year  to  a  day  before  the  battle  of  Bunker 
Hill,  the  Massachusetts  House  of  Representatives,  under  the  leadership  of 
Samuel  Adams,  resolved : 

That  a  meeting  of  Committees  from  the  several  Colonies  on  this  Continent 
is  highly  expedient  and  necessary,  to  consult  upon  the  present  state  of  the 
Colonies,  and  the  miseries  to  which  they  are  and  must  be  reduced  by  the 
operation  of  certain  acts  of  Parliament  respecting  America,  and  to  deliberate 
and  determine  upon  wise  and  proper  measures,  to  be  by  them  recommended 
to  all  the  Colonies,  for  the  recovery  and  establishment  of  their  just  rights  & 
liberties,  civil  &  religious,  and  the  restoration  of  union  &  harmony  between 
Great  Britain  and  the  Colonies,  most  ardently  desired  by  all  good  men. 
Therefore,  Resolved,  that  the  iron"10.  James  Bowdoin,  esqr.,  the  Honble. 
Thomas  Cushing,  esqr.,  Mr.  Samuel  Adams,  John  Adams,  &  Robert  Treat 
Paine,  esq™,  be,  and  they  are  hereby  appointed  a  Committee  on  the  part  of 
this  province,  for  the  purposes  aforesaid,  any  three  of  whom  to  be  a  quorum, 
to  meet  such  committees  or  delegates  from  the  other  Colonies  as  have  been  or 


24  THE  united  states:  a  study  in  international  organization 

may  be  appointed,  either  by  their  respective  houses  of  Burgesses,  or  represen- 
tatives, or  by  convention,  or  by  the  committees  of  correspondence  appointed 
by  the  respective  houses  of  Assembly,  in  the  city  of  Philadelphia,  or  any 
other  place  that  shall  be  judged  most  suitable  by  the  Committee,  on  the  first 
day  of  September  next;  &  that  the  Speaker  of  the  House  be  directed,  in  a 
letter  to  the  speakers  of  the  houses  of  Burgesses  or  representatives  in  the 
several  Colonies,  to  inform  them  of  the  substance  of  these  Resolves.1 

On  September  5th  the  delegates  of  all  but  three  colonies  met.  On  the  14th 
those  of  North  Carolina  appeared.  The  Congress  organized  with  Peyton 
Randolph,  of  Virginia,  as  President.  On  September  7th  a  committee,  consist- 
ing of  two  members  from  each  colony,  was  appointed  "  to  State  the  rights  of 
the  Colonies  in  general,  the  several  instances  in  which  those  rights  are  violated 
or  infringed,  and  the  means  most  proper  to  be  pursued  for  obtaining  a  restora- 
tion of  them."  And  it  was  decided  "  that  the  Congress  do  confine  themselves, 
at  present,  to  the  consideration  of  such  rights  only  as  have  been  infringed  by 
acts  of  the  British  parliament  since  the  year  1763."  2 

In  this  the  colonists  were  well  advised,  for  1763  marked  an  epoch  in  the 
relations  between  America  and  Great  Britain.  Before  that  date  the  colonies 
had  been  looked  upon  as  separate  and  distinct  plantations,  to  be  protected, 
if  need  be,  against  the  aggression  of  France  from  the  north  in  Canada  and  the 
west  in  Louisiana.  The  conquest  of  Canada,  in  which  the  colonies  partici- 
pated, and  its  cession  by  the  treaty  of  1763  to  Great  Britain,  the  cession  of 
Louisiana  to  Spain  and  the  recognition  of  the  Mississippi  as  the  boundary, 
caused  the  Crown  and  its  advisers,  apparently  for  the  first  time,  to  consider 
the  colonies  as  a  unit  and  to  govern  them  as  such,  and,  in  pursuance  of  this 
policy,  to  pass  the  various  statutes  whereof  the  colonists  complained, 
peciara-  Thev  therefore  adopted  a  declaration.     On  October  14th  a  report  on  the 

tion  and  J  r  l 

rights  and  grievances  of  the  colonies  was  adopted,  known  as  the  Declaration 
and  Resolves  of  the  First  Continental  Congress.3 

The  declaration  consists  of  eleven  resolutions  framed  by  representatives  of 
"  the  good  people  of  the  several  Colonies  "  with  the  exception  of  Georgia 
which,  however,  was  later  to  be  represented  in  the  Congress.  The  first  ten 
of  the  resolutions  state  the  rights  of  the  colonies  as  their  respective  representa- 
tives believed  them  to  be  on  the  eve  of  the  Revolution,  and  the  eleventh  is  an 
enumeration  of  the  acts  of  parliament  which  they  considered  to  be  inconsist- 
ent with  the  declaration  of  rights  and  which  therefore  should  be  repealed  "  in 
order  to  restore  harmony  between  Great  Britain  and  the  American  colonies." 
The  preamble  asserts  that  Parliament  has  claimed  "a  power  of  right  to  bind 
the  people  of  America,  by  statute  in  all  cases  whatsoever,"  that  Parliament 

1  Journals  of  the  Continental  Congress  (1904 — ),  Vol.  i,  pp.  15-16.  For  documents  and 
correspondence  relating  to  proceedings  of  the  Continental  Congress  and  the  Colonial  Con- 
gresses, see  also  Force's  American  Archives,  Fourth  Series,  1837. 

2  Ibid.,  p.  42. 

3  Ibid.,  pp.  63-73. 


Resolves 


INDEPENDENCE   DECLARED  25 

had  "  in  some  acts  expressly  imposed  taxes  on  them,"  and  that  Parliament 
"  under  various  pretences,  but  in  fact  for  the  purpose  of  raising  a  revenue," 
had  "  imposed  rates  and  duties  payable  in  these  colonies."  Because  of  this 
action  on  the  part  of  Great  Britain,  the  colonies  deemed  it  essential  to  set 
forth  their  rights  in  the  premises.     Therefore  they  declared: 

That  they  were  "  entitled  to  life,  liberty,  &  property,"  and  that  they  had 
never  renounced  the  right  to  dispose  thereof  to  any  foreign  power  without 
their  consent ; 

That  their  ancestors  were,  at  the  time  of  their  emigration,  "  entitled  to 
all  the  rights,  liberties,  and  immunities  of  free  and  natural-born  subjects, 
within  the  realm  of  England  ;  " 

That  these  rights  were  not  lost  by  emigration  and  that  their  descendants 
were  therefore  "  entitled  to  the  exercise  and  enjoyment  of  all  such  of  them, 
as  their  local  and  other  circumstances  enable  them  to  exercise  and  enjoy ;  " 

That  the  inhabitants  of  the  colonies  could  not,  because  of  local  conditions, 
be  properly  represented  in  Parliament,  but  only  in  their  local  legislatures, 
where  by  their  representatives,  they  consented  to  taxation ;  recognizing,  how- 
ever, the  right  of  the  British  Parliament  to  regulate  their  "  external  com- 
merce, for  the  purpose  of  securing  the  commercial  advantages  of  the  whole 
empire  to  the  mother  country,  and  the  commercial  benefits  of  its  respective 
members ;  excluding  every  idea  of  taxation,  internal  or  external,  for  raising 
a  revenue  on  the  subjects,  in  America,  without  their  consent;  " 

That  the  colonies  were  entitled  "  to  the  common  law  of  England,"  and 
more  especially  to  the  "  inestimable  privilege  "  of  trial  by  jury ; 

That  they  were  "  entitled  to  the  benefits  of  such  of  the  English  statutes 
as  existed  at  the  time  of  their  colonization,"  and  which  had  been  found  ap- 
plicable to  local  conditions ; 

That  they  were  entitled  to  "  all  the  immunities  and  privileges  granted  & 
confirmed  to  them  by  royal  charters,  or  secured  by  their  several  codes  of 
provincial  laws ;  " 

That  they  possessed  the  right,  and  without  restraint,  peaceablv  to  assemble, 
to  consider  their  grievances,  and  tn  petition  the  kins:  f°r  a  redress  thereof; 

That  the  maintenance  of  a  standing  army  in  the  colonies  in  times  of  peace 
without  the  consent  of  the  colonial  legislatures  was  against  law; 

That  the  branches  of  the  legislature  should  be  independent  of  each  other; 
and  therefore  that  the  exercise  of  legislative  power  by  a  council  appointed  by 
the  Crown  and  serving  during  its  pleasure,  "  is  unconstitutional,  dangerous, 
and  destructive  to  the  freedom  of  American  legislation ;  " 

And  finally,  that  these  "  their  indubitable  rights  and  liberties  "  could  not 
be  "  legally  taken  from  them,  altered  or  abridged  by  any  power  whatever, 
without  their  own  consent,  by  their  representatives  in  their  several  provincial 
legislatures." 


ciation 


26  ■   THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

This  document,  which  would  have  justified  in  itself  the  call  and  the  meet- 
ing of  the  Congress,  does  not,  however,  stand  alone ;  for  the  representatives 
of  the  colonies  did  not  content  themselves  with  a  statement  of  grievances  but 
considered  "  the  means  most  proper  to  be  used  for  the  restoration  "  of  colonial 
rights. 

Sharing,  no  doubt,  the  view  of  John  Adams  that  the  various  Navigation 
Acts  and  Acts  of  Trade  were  the  cause  of  strained  relations  leading  in  the 
end  to  revolution,  the  members  of  Congress  were  of  the  opinion  that  "  a  Non- 
Importation,  Non-Consumption,  and  Non-Exportation  Agreement,  faithfully 
adhered  to,"  would  prove  "  the  most  speedy,  effectual,  and  peaceable  measure." 
Therefore  a  report,  advocating  an  association  to  cut  off  all  trade  between 
asso-  the  colonies,  Great  Britain  and  its  other  possessions,  was  reported  on  the 

12th,  agreed  to  on  the  18th  and  signed  on  October  20,  1774,  by  fifty-three 
members  of  the  Congress,  by  which  they  solemnly  bound  themselves  and  their 
constituents  to  adhere  to  the  Association  until  the  grievances  whereof  they 
complained  were  redressed ;  and  they  recommended  it  "  to  the  provincial  con- 
ventions, and  to  the  committees  in  the  respective  colonies,  to  establish  such 
farther  regulations  as  they  may  think  proper,  for  carrying  into  execution  this 
association."  *  Whereupon,  the  Congress  adjourned  on  October  26th,  hav- 
ing invited  all  the  colonies  to  send  delegates  to  another  Congress,  to  meet  on 
the  10th  day  of  May,  1775,  unless  their  grievances  had  been  redressed  in  the 
meantime. 

It  is  to  be  observed  that,  although  no  union,  an  association  of  the  colonies 
was  formed  which  was  rapidly  to  develop  into  a  union  in  law  as  well  as  in 
fact.  On  April  19,  1775,  the  British  forces  in  Boston  deemed  it  advisable  to 
seize  and  destroy  some  powder  magazines  at  Concord  in  the  province  of  Massa- 
chusetts. The  intention  of  the  British  commander  became  known  and,  when 
his  troops  entered  the  little  town  of  Lexington  at  day-break,  on  the  way  to 
Concord,  they  found  drawn  up  a  small  body  of  provincials,  which  they  quickly 
dispersed  and  continued  their  march  to  Concord,  where  they  indeed  effected 
their  purpose,  but  found  larger  bodies  of  provincials  drawn  up  to  resist  them. 
Blood  had  been  drawn  at  Lexington;  it  was  freely  shed  at  Concord,  and  be- 
fore "  the  embattled  farmers  "  the  British  troops  hurriedly  fell  back  to  avoid 
the  capture  which  threatened  them. 

When,  therefore,  the  second  Continental  Congress  met  in  Philadelphia  on 
May  10,  1775,  it  was  composed  of  representatives  of  all  the  thirteen  colonies 
including  those  of  Georgia,  which  by  this  time  had  made  up  its  mind  to  cast 
its  lot  with  the  other  colonies.  Peyton  Randolph  was  again  elected  President, 
but,  absenting  himself  in  Virginia  to  attend  to  matters  of  the  province,  he  was, 
on  May  24,  1775,  succeeded  by  John  Hancock  of  Massachusetts. 

Finding  themselves  in  the  midst  of  war,  the  colonies  in  Congress  accepted 

1  Journals  of  the  Continental  Congress,  Vol.  i,  p.  80. 


INDEPENDENCE   DECLARED  27 

the  gauge  of  battle  by  electing  on  June  15th,  by  unanimous  ballot,  one  of  their 
members,  George  Washington,  to  be  commander-in-chief  of  the  armies  raised 
and  to  be  raised  in  order  that  "  the  liberties  of  the  country  receive  no  detri- 
ment." 1 

The  Congress,  recognizing  the  importance  of  this  action,  adopted  on  July  DecUr^iou 
6,  1775,  a  carefully  prepared  and  moderate  "  Declaration  of  the  Causes  and  f^mon 
Necessity  of  Taking  up  Arms,"  which  was  "  to  be  published  by  General  Wash- 
ington upon  his  arrival  at  the  camp  before  Boston,"  in  which  city  the  British 
army  was  then  besieged  by  the  provincial  troops  and  volunteers  already  pour- 
ing in  from  the  adjoining  colonies.  At  the  same  time,  every  effort  was  made 
by  the  Congress  to  effect  a  reconciliation  with  the  mother  country,  and  the 
declaration  of  the  6th  was  accompanied  on  the  8th  by  a  petition  to  the  King, 
each  drafted  by  the  patriotic  yet  cautious  and  conciliatory  Dickinson. 

In  the  interval  between  the  first  and  second  Congress,  Lord  North,  then 
Prime  Minister  of  Great  Britain,  held  out  the  olive  branch  in  the  form  of  a 
Conciliatory  Resolution  of  February  27,  1775,  by  the  terms  of  which  the 
Imperial  Parliament  declared  its  intention  to  abstain  from  internal  taxation, 
and  only  to  regulate  commerce,  provided  each  colony  or  province  should  con- 
tribute its  portion  "  to  the  common  defence,"  and  "  engage  to  make  provi- 
sion also  for  the  support  of  the  Civil  Government,  and  the  Administration  of 
Justice,  in  such  Province  or  Colony."  2  The  conciliatory  act  was  meant  to  be 
a  concession,  not  a  surrender,  and  it  was  shortly  followed  by  the  New  Eng- 
land Restraining  Act  of  March  30,  1775,  cutting  off  all  trade  between  the 

1  On  June  16,  1775 

The  president  from  the  chair  informed  Geo:  Washington  esqr.  that  he  had  the  order  of 
the  Congress  to  acq[ain]t  him,  that  the  Congress  had  by  a  unanimous  vote  made  choice  of 
him  to  be  general  and  commander  in  chief  to  take  the  supreme  command  of  the  forces  raised 
and  to  be  raised,  in  defence  of  American  Liberty,  and  desired  his  acceptance  of  it.  Where- 
upon Colonel  Washington,  standing  in  his  place,  spoke  as  follows : 

"Mr.  President, 

"  Tho'  I  am  truly  sensible  of  the  high  Honour  done  me,  in  this  Appointment,  yet  I  feel 
great  distress,  from  a  consciousness  that  my  abilities  and  military  experience  may  not  be 
equal  to  the  extensive  and  important  Trust:  However,  as  the  Congress  desire  it,  I  will 
enter  upon  the  momentous  duty,  and  exert  every  power  I  possess  in  their  service,  and  for 
support  of  the  glorious  cause.  I  beg  they  will  accept  my  most  cordial  thanks  for  this  dis- 
tinguished testimony  of  their  approbation. 

"  But,  lest  some  unlucky  event  should  happen,  unfavourable  to  my  reputation,  I  beg  it 
may  be  remembered,  by  every  gentleman  in  the  room,  that  I,  this  day,  declare,  with  the  utmost 
sincerity,  I  do  not  think  myself  equal  to  the  Command  I  am  honored  with.  .  .  ."  Journals. 
Vol.  ii,  pp.  91-2. 

On  June  26th  the  New  York  Provincial  Congress  submitted  an  address  to  General  Wash- 
ington expressing  satisfaction  at  his  appointment.     In  the  course  of  his  reply  he  said: 

"  May  your  warmest  wishes  be  realized  in  the  success  of  America  at  this  important  and 
interesting  period;  and  be  assured  that  every  exertion  of  my  worthy  colleagues  and  myself 
will  be  equally  extended  to  the  reestablishment  of  peace  and  harmony  between  the  Mother 
Country  and  these  Colonies,  as  to  the  fatal  but  necessary  operations  of  war.  When  we  as- 
sumed the  soldier  we  did  not  lay  aside  the  citizen;  and  we  shall  most  sincerely  rejoice  with 
you  in  that  happy  hour  when  the  establishment  of  American  liberty,  on  the  most  firm  and 
solid  foundations,  shall  enable  us  to  return  to  our  private  stations  in  the  bosom  of  a  free, 
peaceful,  and  happy  Country."  See  Journal  of  New  York  Provincial  Congress  for  June  26, 
1775.    Here  reprinted  from  American  Archives,  Fourth  Series,  1839,  Vol.  2,  p.  1322. 

2  Archives,  Fourth  Scries,  1837,  Vol.  1,  p.  1611. 


28  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

colonies  and  foreign  countries  and  restraining  their  trade  to  Great  Britain. 
In  April  the  southern  colonies  were  likewise  restrained,  and  these  various 
measures  were  later  superseded  by  the  general  act  of  December  22,  1775,  pro- 
hibiting trade  and  intercourse  with  America. 

On  July  31,  1775,  the  Congress,  in  a  report  written  by  Thomas  Jefferson, 
rejected  Lord  North's  conciliatory  resolution,  which  had  been  laid  before  that 
body  in  the  month  of  May,  1775.  On  its  part,  Great  Britain  was  not  slow  to 
take  action.  The  battles  of  Lexington  and  Concord  on  April  19th  and  of 
Bunker  Hill  on  June  17th,  between  British  troops  and  the  colonists,  and  the 
appointment  of  Washington  as  commander-in-chief,  likewise  convinced  the 
British  Government  that  war  was  on,  and  on  August  23,  1775,  it  issued  a 
proclamation  of  rebellion  appropriately  ending  with  "  God  Save  the  King." 
The  resort  was  indeed  made  to  conciliation,  but  the  appeal  had  already  been 
made  to  the  sword.  Too  late  for  the  American  colonies  on  the  Continent,  it 
was  not  too  late  to  save  the  other  colonies  which  Great  Britain  then  had  or  has 
since  acquired,  and  which  are  now  self-supporting  dominions  proud  of  their 
connection  with  the  mother  country.  This  was  the  famous  Taxation  of  Colo- 
nies Act  ( 18  Geo.  Ill,  c.  12)  providing  that  Parliament  "  will  not  impose  any 
duty,  tax,  or  assessment  whatever,  payable  in  any  of  his  Majesty's  colonies, 
provinces,  and  plantations  in  North  America  or  the  West  Indies ;  except  only 
such  duties  as  it  may  be  expedient  to  impose  for  the  regulation  of  commerce; 
the  net  produce  of  such  duties  to  be  always  paid  and  applied  to  and  for  the  use 
of  the  colony,  province,  or  plantation,  in  which  the  same  shall  be  respectively 
levied,  in  such  manner  as  other  duties  collected  by  the  authority  of  the  re- 
spective general  courts,  or  general  assemblies,  of  such  .colonies,  provinces,  or 
plantations,  are  ordinarily  paid  and  applied."  LTpon  this  act,  caused  by  the 
revolt  of  the  American  colonies  and  the  attitude  of  Great  Britain  toward  its 
colonies  of  today,  a  competent  British  authority  says :  "  This  renunciation 
by  the  Imperial  Parliament  of  the  right  to  impose  taxes  upon  a  colony,  whether 
a  self-governing  colony  or  not,  has  passed  through  two  stages.  Since  1783 
taxation  imposed  by  an  Imperial  Act  has  always  been,  even  in  the  case  of  a 
Crown  colony,  imposed  for  the  benefit  of  the  colony,  and  the  proceeds  thereof 
have  been  paid  to  the  colony.  But  until  the  repeal  of  the  Navigation  Laws  in 
1849  Parliament,  in  support  of  our  whole  navigation  system,  retained  the 
practice  of  imposing  duties  on  goods  imported  into  the  colonies,  though  the 
proceeds  thereof  were  paid  to  the  colonies  so  taxed.  Since  1849  no  Imperial 
Act  has  been  passed  for  the  taxation  of  any  colony,  and  no  colony  is  compelled 
by  the  Imperial  Parliament  to  contribute  anything  in  the  way  of  taxation 
towards  the  cost  of  the  government  of  the  United  Kingdom  or  towards  the 
defence  of  the  British  Empire."  1 

No  answer  other  than  this  proclamation  and  the  prohibition  of  trade  and 
1  Albert  Venn  Dicey,  Law  of  the  Constitution,  1915  ed.,  p.  xxvi,  Note  2. 


The 


INDEPENDENCE  DECLARED  29 

intercourse  with  America  was  made  to  the  petition  of  Congress  of  July  8, 
1775  —  consequently,  the  last  offer  of  reconciliation  made  by  Congress.  The 
members  of  that  famous  body  were  confronted  with  prudent  submission  or 
armed  resistance.  The  question  of  independence  forced  itself  upon  them  and  *i°*io" 
the  succeeding  months  were  devoted  to  its  consideration,  and  certain  steps  pendence 
taken  before  its  declaration,  which  presupposed  its  adoption.  Thus,  on  No- 
vember 3,  1775,  within  four  days  of  the  news  of  the  rejection  of  the  petition 
to  the  King,  the  Congress  recommended  the  Provincial  Convention  of  New 
Hampshire  "  to  call  a  full  and  free  representation  of  the  people,  and  that  the 
representatives,  if  they  think  it  necessary,  establish  such  a  form  of  govern- 
ment as,  in  their  judgment,  will  best  produce  the  happiness  of  the  people,  and 
most  effectually  secure  peace  and  good  order  in  the  province,  during  the  con- 
tinuance of  the  present  dispute  between  G[reat]  Britain  and  the  colonies."  1 
And  on  May  15,  1776,  the  Congress,  taking  general  action,  resolved  "  That  it 
be  recommended  to  the  respective  assemblies  and  conventions  of  the  United 
Colonies,  where  no  government  sufficient  to  the  exigencies  of  their  affairs 
have  been  hitherto  established,  to  adopt  such  government  as  shall,  in  the 
opinion  of  the  representatives  of  the  people,  best  conduce  to  the  happiness  and 
safety  of  their  constituents  in  particular,  and  America  in  general."  2 

There  was  but  one  further  step  to  take,  as  the  Congress  then  thought  and   J)'neaI 
as  we  today  see,  and  that  step  was  finally  taken  on  July  4,  1776.     Therefore,   Step 
by  way  of  preparation,  Richard  Henry  Lee,  on  behalf  of  the  delegates  from 
Virginia,  made  the  following  motion  on  June  7th : 

That  these  United  Colonies  are,  and  of  right  ought  to  be,  free  and  in- 
dependent States,  that  they  are  absolved  from  all  allegiance  to  the  British 
Crown,  and  that  all  political  connection  between  them  and  the  State  of  Great 
Britain  is,  and  ought  to  be,  totally  dissolved. 

That  it  is  expedient  forthwith  to  take  the  most  effectual  measures  for 
forming  foreign  Alliances. 

That  a  plan  of  confederation  be  prepared  and  transmitted  to  the  respective 
Colonies  for  their  consideration  and  approbation.3 

This  motion,  appropriately  made  by  Mr.  Lee  on  behalf  of  the  leading  southern 
colony,  was  appropriately  seconded  by  John  Adams  of  the  northern  colony 
of  Massachusetts.  George  Washington,  of  Virginia,  had  been  appointed  com- 
mander-in-chief upon  motion  of  Maryland,  seconded  by  John  Adams  of 
Massachusetts.  The  committee  to  draft  the  Declaration  of  Independence  had 
as  its  chairman  Thomas  Jefferson  of  the  colony,  by  virtue  of  that  Declara- 
tion to  be  the  State,  of  Virginia,  in  lieu  of  Richard  Henry  Lee,  absent  on 
account  of  illness  in  his  family,  who  might  otherwise  have  presided  over  the 
committee  and  drafted  its  report. 

The  committee,  consisting  of  Thomas  Jefferson  of  Virginia,  John  Adams 

1  Journals  of  the  Continental  Congress,  Vol.  iii,  p.  319. 

2  Ibid.,  Vol.  iv,  p.  342. 
«  Ibid.,  Vol.  v,  p.  425. 


30 


THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


The  Dec- 
laration 
Signed 
and  Pro- 
claimed 


of  Massachusetts,  Benjamin  Franklin  of  Pennsylvania,  Roger  Sherman  of 
Connecticut,  and  Robert  R.  Livingston  of  New  York,  was  elected  by  ballot 
"  to  prepare  a  declaration  to  the  effect  of  the  said  first  resolution."  On  the 
28th  of  June  the  committee  brought  in  a  draft  of  a  Declaration  of  Independ- 
ence, written  by  Thomas  Jefferson  with  slight  emendations  on  the  part  of  Dr. 
Franklin  and  John  Adams,  still  to  be  seen  in  their  handwriting  on  Mr.  Jeffer- 
son's manuscript.  On  July  2nd,  Richard  Henry  Lee's  resolution  was  adopted. 
On  the  4th  day  of  July  the  Declaration  of  Independence,  as  reported  by  the 
committee,  was  agreed  to  with  sundry  amendments  *  both  of  form  and  sub- 
stance, and  signed  by  John  Hancock  as  President  of  the  Congress,  by  Charles 
Thompson  as  Secretary,  and  by  its  members  on  August  2nd.  The  Declara- 
tion was  published  immediately,  and  in  fact  as  well  as  in  law  the  independence 
of  the  United  States  dates  from  the  4th  day  of  July,  1776.  On  this  same 
eventful  day  the  Congress  directed  that  copies  be  sent  "  to  the  several  assem- 
blies, conventions,  and  committees,  or  councils  of  safety,  and  to  the  several 
commanding  officers  of  the  continental  troops;  that  it  be  proclaimed  in  each 
of  the  United  States,  and  at  the  head  of  the  army."  2 

The  document  consists  of  what  may  be  called  a  preamble,  stating  the  right 
of  peoples  to  set  up  for  themselves  and  to  change  their  forms  of  government 
at  their  sovereign  pleasure;  of  an  imposing  list  of  grievances  suffered  at  the 
hands  of  George  III,  then  King  of  Great  Britain;  and  of  a  Declaration  of 
Independence,  based  upon  the  right  in  behalf  of  the  colonies  asserted  in  the 
preamble  and  justified  by  the  enumeration  of  grievances  set  forth  in  the  body 
of  the  instrument,  "  to  assume,  among  the  Powers  of  the  earth,  the  separate 
and  equal  station  to  which  the  Laws  of  Nature  and  of  Nature's  God  entitle 
them;  "  and  "  for  the  support  of  this  Declaration,  with  a  firm  reliance  upon  the 
protection  of  divine  Providence,"  the  delegates  of  the  erstwhile  colonies,  speak- 


1  For  an  account  of  the  drafting  of  the  Declaration  and  the  amendments  suggested  by 
John  Adams  and  Benjamin  Franklin,  see  John  H.  Hazelton,  The  Declaration  of  Independ- 
ence—Its History,  1906,  Chapter  VI. 

In  a  letter  to  Mr.  Madison,  dated  August  30.  1823,  forty-seven  years  after  "the  transac- 
tions of  Independence,"  Mr.  Jefferson  made  the  following  statement : 

the  committee  of  5.  met,  no  such  thing  as  a  subcommittee  was  proposed,  but  they  unani- 
mously pressed  on  myself  alone  to  undertake  the  draught.  I  consented;  I  drew  it;  but  be- 
fore I  reported  it  to  the  committee,  I  communicated  it  separately  to  Dr.  Franklin  and  rnr. 
Adams  requesting  their  corrections;  because  they  were  the  two  members  of  whose  judg- 
ments and  amendments  I  wished  most  to  have  the  benefit  before  presenting  it  to  the  Com- 
mittee; .  .  .  their  alterations  were  two  or  three  only,  and  merely  verbal.  .  .  .  Pickering's 
observations,  and  mr.  Adams's  in  addition,  '  that  it  contained  no  new  ideas,  that  it  is  a  com- 
mon place  compilation,  it's  sentiments  hacknied  in  Congress  for  two  5'ears  before,  and  it's 
essence  contained  in  Otis's  pamphlet,'  may  all  be  true,  of  that  I  am  not  to  be  the  judge. 
Richd.  H.  Lee  charged  it  as  copied  from  Locke's  treatise  on  government.  Otis's  pamphlet 
I  never  saw,  &  whether  I  had  gathered  nry  ideas  from  reading  or  reflection  I  do  not  km  —. 
I  know  only  that  I  turned  to  neither  book  or  pamphlet  while  writing  it.  I  did  not  consider 
it  as  any  part  of  my  charge  to  invent  new  ideas  altogether  &  to  offer  no  sentiment  which 
had  ever  been  expressed  before.  Hazelton,  pp.  144-145.  See  also  Ford,  The  Writings  of 
Thomas  Jefferson,  Vol.   x,  pp.  267-8. 

2  Journals  of  the  Continental  Congress,  Vol.  v,  p.  516. 


Philosophy 


INDEPENDENCE  DECLARED  31 

ing  now  and  the  first  time  for  the  States,  mutually  pledged  their  lives,  their 
fortunes,  and  their  sacred  honor. 

For  present  purposes  it  is  only  necessary  to  state  and  to  analyze  the  political 
philosophy  contained  in  the  preamble  and  the  conclusion  of  this  remarkable 
document,  which,  as  the  historian  Buckle  has,  as  we  believe,  aptly  said,  of  the  Political. 
Declaration  as  a  whole,  "  ought  to  be  hung  up  in  the  nursery  of  every  king,  and 
blazoned  on  the  porch  of  every  royal  palace."  * 

In  the  preamble  to  this  most  famous  of  American  state  papers,  the  members 
of  the  Second  Continental  Congress  set  forth  not  only  the  reasons  which 
impelled  them  to  separate  but  the  rights  which  they  believed  to  be  inherent 
and  the  principles  which  should  lie  at  the  basis  of  every  form  of  government, 
expressed  in  language  as  classic  as  the  thought  was  impressive : 

When,  in  the  Course  of  human  events,  it  becomes  necessary  for  one  peo- 
ple to  dissolve  the  political  bands  which  have  connected  them  with  another, 
and  to  assume,  among  the  Powers  of  the  earth,  the  separate  and  equal  station 
to  which  the  Laws  of  Nature  and  of  Nature's  God  entitle  them,  a  decent  re- 
spect to  the  opinions  of  mankind  requires  that  they  should  declare  the  causes 
which  impel  them  to  the  separation.2 

Fortunately,  this  language  is  so  clear  and  so  broad  that  it  is  understood 
today  as  it  was  then,  and  its  application  to  all  states  and  conditions  of  men 
is  seen  by  us  of  the  present  day,  quite  as  it  was  felt  by  them  to  be  applicable  to 
the  thirteen  United  Colonies.  Certain  observations  of  a  very  general  nature 
may,  however,  be  apposite. 

The  dissolution  of  the  political  bands  connecting  a  people  with  another  is 
looked  upon  as  necessary  in  the  course  of  human  as  distinct  from  divine  events. 
The  consequence  of  this  dissolution  is  not  the  gathering  of  that  people  into  a 
province  or  subordinate  political  community,  but  the  creation  of  a  power, 
separate  and  distinct  from  all  other  powers  and  possessed  of  an  equal  rank  and 
station  to  which,  according  to  the  statesmen  of  that  day,  "  the  laws  of  Nature 
and  of  Nature's  God  entitle  them."  The  matter  is  not  labored  or  argued,  it 
is  merely  stated,  with  its  consequences.  It  was  apparently  felt  that,  although 
such  action  was  in  conformity  with  the  laws  of  Nature  and  of  Nature's  God, 
it  might  not  appear  to  be  such  to  the  princes  and  peoples  of  the  old  world. 
Therefore,  "  a  decent  respect  to  the  opinions  of  mankind  "  suggested  and  re- 
quired that  they  should  declare  the  causes  which  impelled  them  to  separate. 
Accordingly,  fitting  practice  to  precept,  they  thereupon  stated  the  causes,  bas- 
ing them  in  the  first  instance  upon  certain  principles,  which  they  thus  enumer- 
ated: 

We  hold  these  truths  to  be  self-evident,  that  all  men  are  created  equal, 
that  they  are  endowed  by  their  Creator  with  certain  unalienable  Rights,  that 
among  these,  are  Life,  Liberty,  and  the  pursuit  of  Happiness.     That,  to  se- 

'H.  T.  Buckle,  History  nf  Civilization  in  England,  Am.  ed.,  1857,  Vol.  i,  p.  846. 
2  Journals,  Vol.  v,  p.  510. 


32  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

cure  these  rights,  Governments  are  instituted  among  Men,  deriving  their  just 
Powers  from  the  consent  of  the  governed.  That,  whenever  any  form  of 
Government  becomes  destructive  to  these  ends,  it  is  the  Right  of  the  People 
to  alter  or  to  abolish  it,  and  to  institute  new  Government,  laying  its  founda- 
tion on  such  Principles,  and  organizing  its  Powers  in  such  form,  as  to  them 
shall  seem  most  likely  to  effect  their  Safety  and  Happiness.1 

By  way  of  comment,  it  may  be  premised  that  the  members  of  the  Congress 
abstained  from  argument  in  laying  down  these  truths,  which,  when  stated, 
they  proceed  to  apply  in  the  form  of  conclusions  rather  than  as  premises  to  be 
proved.  It  is  to  be  observed  that,  although  convinced  in  their  own  minds,  they 
are  not  dogmatic,  inasmuch  as  they  do  not  say,  except  by  way  of  implication, 
that  the  truths  they  lay  down  are  self-evident,  but  that  they  themselves 
hold  them  to  be  self-evident.  In  any  event,  they  were  to  be  self-evident  in 
the  New  World,  and  the  States  of  the  Xew  World,  to  be  combined  later  into  a 
more  perfect  Union,  were  to  be  based  upon  these  truths. 

It  is  further  to  be  observed  that  these  rights  with  which  men  are  en- 
dowed by  their  Creator  were,  in  their  conception,  inalienable,  and  that  life, 
liberty  and  the  pursuit  of  happiness  were  so  important  as  to  be  singled  out  as 
among  these,  not  that  life,  liberty,  and  the  pursuit  of  happiness  were  the  only 
inalienable  rights  with  which  men  were  endowed  by  their  Creator.  They 
were,  however,  the  fundamental  as  well  as  inalienable  rights,  because  to  secure 
them  governments  were  instituted  among  and  by  men  which  thus  received 
whatever  powers  they  wrere  to  exercise  from  the  consent  of  the  governed;  the 
meaning  of  which  seems  to  be  as  plain  as  words  can  make  it,  that  States  or 
nations  do  not  confer  powers  upon  the  governed,  but  that  the  people  com- 
posing the  State  or  nation  confer  upon  the  Government  of  that  State  or  nation 
all  the  powers  which  it  possesses,  and  therefore  may  lawfully  exercise. 

In  the  next  clause,  taking  note  of  history,  it  is  declared  that  if,  instead  of 
securing  to  men  the  inalienable  rights  to  life,  liberty,  and  the  pursuit  of 
happiness  for  which  governments  are  instituted,  they  have  proved  to  be  "  de- 
structive of  these  ends,"  the  people  have  the  right  to  alter  or  to  abolish  them, 
and  by  implication  a  duty  is  raised  to  institute  a  new  government  which  shall 
be  based  upon  such  principles,  and  its  powers  organized  in  such  form  as  shall 
seem  to  the  people  composing  the  State  or  nation  most  likely  "  to  effect  their 
Safety  and  Happiness." 

There  is  assuredly  here  no  divine  right  to  govern  wrong.  The  State  is 
composed  of  men  and  women  grouped  together  and  it  only  exists  for  the 
convenience  and  security-  of  the  people  residing  within  the  boundaries  thereof. 
The  Government  of  the  State  is  for  the  benefit  of  the  people,  not  the  people 
for  the  benefit  of  the  governors;  and  the  form  of  government  failing  to  effect 
the  purpose  for  which  the  State  exists,  and  for  which  the  form  of  government 

1  Journals  of  the  Continental  Congress,  Vol.  v,  p.  510. 


INDEPENDENCE  DECLARED  33 

has  been  framed  is  to  be  brushed  ruthlessly  aside  if  it  fail,  and  to  be  sup- 
planted by  one  having  a  better  chance  of  pleasing  the  individuals  taken  to- 
gether, in  whom  the  sovereignty,  elsewhere  attributed  to  the  State  or  nation, 
resides. 

Such  was  the  American  conception  then,  such  is  the  American  conception 
today,  of  the  origin  of  their  government  and  the  purpose  of  government  in 
general.  Because  of  the  principles  laid  down  in  the  preamble,  and  the  griev- 
ances specifically  stated  in  the  document,  the  Declaration  thus  draws  in  meas- 
ured and  unanswerable  terms  the  consequences  of  one  and  the  other : 

We,  therefore,  the  Representatives  of  the  United  States  of  America,  in 
General  Congress  assembled,  appealing  to  the  Supreme  Judge  of  the  World 
for  the  rectitude  of  our  intentions,  do,  in  the  Name,  and  by  Authority  of  the 
good  People  of  these  Colonies,  solemnly  publish  and  declare,  That  these 
United  Colonies  are,  and  of  Right,  ought  to  be  Free  and  Independent  States ; 
that  they  are  Absolved  from  all  Allegiance  to  the  British  Crown,  and  that  all 
political  connetion  between  them  and  the  State  of  Great  Britain,  is  and  ought 
to  be  totally  dissolved ;  and  that,  as  Free  and  Independent  States,  they  have 
full  Power  to  levy  War,  conclude  Peace,  contract  Alliances,  establish  Com- 
merce, and  to  do  all  other  Acts  and  Things  which  Independent  States  may 
of  right  do.  And  for  the  support  of  this  Declaration,  with  a  firm  reliance 
on  the  Protection  of  Divine  Providence,  we  mutually  pledge  to  each  other  our 
Lives,  our  Fortunes  and  our  sacred  honour.1 

Because  of  these  premises  and  conclusions,  the  people  of  the  Colonies,  by  their 
representatives  in  Congress  assembled,  declared  the  Colonies  to  be  free  and 
independent  States,  absolving  them  from  allegiance  to  the  British  Crown  and 
dissolving  the  political  connection  between  them  and  the  State  of  Great  Brit- 
ain, apparently  applying  the  word  "  State  "  to  Great  Britain  and  erstwhile 
colony  with  a  like  significance.  And  the  free  and  independent  States,  no 
longer  spoken  of  as  united  or  in  union,  are  declared  to  have  "  full  power  to 
levy  War,  conclude  Peace,  contract  Alliances,  establish  Commerce,  and  to  do 
all  other  Acts  and  Things  which  Independent  States  may  of  right  do." 

The  immediate  and  the  proximate  results  of  this  Declaration  on  the  part   co°nnce0<t'ion 
of  the  Congress,  drafted  in  faultless  language  by  Jefferson,  are  thus  stated  by   ReJufta 
James  Monroe,  a  younger  contemporary,  destined  to  be  an  illustrious  suc- 
cessor of  Jefferson  in  the  Presidency  : 

The  first  is  that  in  wresting  the  power,  or  what  is  called  the  sovereignty, 
from  the  Crown  it  passed  directly  to  the  people.  The  second,  that  it  passed 
directly  to  the  people  of  each  Colony  and  not  to  the  people  of  all  the  Colonies 
in  the  aggregate ;  to  thirteen  distinct  communities  and  not  to  one.  To  these 
two  facts,  each  contributing  its  equal  proportion,  I  am  inclined  to  think  that 
we  are  in  an  eminent  degree  indebted  for  the  success  of  our  Revolution.2 

1  Journals,  Vol.  v,  p.  514. 

2  Views  of  the  Presidents  of  the  United  States  on  the  Subject  of  Internal  Improvements 
—  Stanislaus  "Murray  Hamilton,  The  Writings  of  James  Monroe,  1902,  Vol.  6,  p.  224.  See 
also  James  D.  Richardson,  Compilation  of  the  Messages  and  Papers  of  the  Presidents 
1789-1897  (1896),  Vol.  2,  p.  149. 


A  New 

Body 

Politic 


34  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

And  yet,  although  the  colonies  were  declared  by  this  instrument  to  be  free 
and  independent  States,  or  thirteen  distinct  communities,  in  Monroe's  gloss, 
they  nevertheless  may  be  considered  by  the  agreement  of  association  or  by 
the  Declaration  of  Independence,  or  by  their  mere  association,  without  the 
agreement  of  1774  or  the  Declaration  of  1776,  to  form  a  body  politic,  as 
they  were  expressly  held  to  be  by  a  signer  of  the  Declaration  of  Independence, 
in  the  case  of  Respublica  v.  Sweers  (1  Dallas,  41),  decided  in  the  Supreme 
Court  of  Pennsylvania  in  1779,  approximately  two  years  before  the  Articles 
of  Confederation,  making  of  them  a  perpetual  Union,  had  gone  into  effect. 

The  facts  of  this  case  are  very  interesting,  in  that  one  Cornelius  Sweers, 
a  deputy  Commissary-General  of  Military  Stores  in  the  armies  of  the  United 
States  of  America,  was  indicted  in  a  Pennsylvania  court  held  in  Philadelphia, 
■ —  because  the  United  States  did  not  then  possess  courts  of  their  own, —  in 
November,  1778,  for  forgery  upon  two  bills  with  intent  to  defraud  the  United 
States.  On  the  14th  of  April,  1779,  he  was  convicted  upon  both  indictments, 
and  five  days  later  the  exceptions  taken  by  his  counsel  were  overruled  and 
sentence  pronounced  by  the  court.  Mr.  Chief  Justice  McKean  said,  in  over- 
ruling the  exceptions  to  the  form  and  substance  of  these  indictments,  and  in 
sentencing  the  defendant,  convicted  upon  both  of  them : 

The  first  exception  was,  "  that,  at  the  time  of  the  offence  charged,  the 
United  States  were  not  a  body  corporate  known  in  law."  But  the  Court  are 
of  a  different  opinion.  From  the  moment  of  their  association,  the  United 
States  necessarily  became  a  body  corporate;  for,  there  was  no  superior  from 
whom  that  character  could  otherwise  be  derived.  In  England,  the  king,  lords, 
and  commons,  are  certainly  a  body  corporate;  and  yet  there  never  was  any 
charter  or  statute,  by  which  they  were  expressly  so  created. 

After  examining  certain  technicalities  of  pleading,  immaterial  to  the  matter 
in  hand,  the  Chief  Justice  thus  continued : 

Upon  the  whole,  we  are  of  opinion,  that  your  conviction  has  been  legal, 
as  well  as  just;  and,  therefore,  it  only  remains  to  pronounce  the  sentence  of 
the  court. 

The  sentence,  alike  important  and  interesting  both  to  the  defendant  and  to 
the  reader,  is  happily  expressed  in  terms  of  the  independence  of  the  United 
States : 

Sentence,  on  the  first  indictment: — A  fine  of  £70  and  imprisonment  un- 
til the  4th  of  July,  the  anniversary  of  American  Independence. 

Sentence,  on  the  second  indictment: — A  fine  of  £1020  and  imprisonment 
until  the  next  annual  election  for  Pennsylvania,  and  standing  in  the  pillory 
for  one  hour. 

our  First  and  Reverting  to  the  second  of  the  three  resolutions  introduced  by  Richard 

Henry  Lee  on  June  7,  1776,  "  that  it  is  expedient  forthwith  to  take  the  most 
effectual  measures  for  forming  foreign  Alliances,"  it  is  sufficient  to  say,  in 
this  connection,  that  a  committee  of  five  was  chosen  on  the  12th  in  order  to 


INDEPENDENCE  DECLARED  35 

prepare  a  plan  of  treaties  to  be  proposed  to  foreign  powers,  and  that  Ben- 
jamin Franklin,  a  member  of  the  committee  on  the  Declaration  of  Independ- 
ence, was,  by  the  Congress,  sent  as  our  first  minister  to  France,  with  which 
country  he  negotiated,  on  February  6,  1778,  in  conjunction  with  Silas  Dean 
and  Arthur  Lee,  an  offensive  and  defensive  treaty  of  alliance,  by  virtue  of 
which  France  came  to  the  aid  of  the  United  States,  resulting  in  the  acquisi- 
tion of  independence  of  the  Colonies  then,  and  today  in  the  cooperation  of 
the  armies  of  these  United  States  upon  French  soil  to  preserve  inviolate  the 
independence  of  our  first  and  our  only  ally. 

It  could  be  shown,  if  time  and  space  permitted,  that  the  ideas  and  the 
language  of  the  Declaration  of  Independence  came  from  English  philosophers, 
from  Hooker  to  Locke;  that  every  important  phase  of  the  preamble  is  to  be 
found  in  one  form  or  another  in  Locke's  two  discourses  on  Civil  Govern- 
ment ;  and  that,  indeed,  the  important  phrases  of  the  preamble  can  be  found 
in  Locke's  exact  language. 

But  admitting  that  to  be  so,  it  does  not  detract  from  the  importance  of  the 
document,  because  Locke  spoke  as  an  individual,  justifying  the  Revolution 
of  1688,  whereas  the  Congress  spoke  as  a  political  body  making  the  Revolu- 
tion of  1776.  And  it  is  believed  that  the  Second  Continental  Congress  is  the 
first  parliament,  legislature,  or  congress  that  ever  adopted  and  proclaimed 
these  doctrines,  and  that  the  United  States  is  the  first  country  which  ever 
put  them  into  effect  in  the  form  in  which  they  were  stated. 

The  doctrines  are  in  truth  the  doctrines  of  English  liberty.     They  are  not,   D«fr°in°stbe 
as  has  been  so  often  asserted,  the  doctrines  of  Rousseau.     At  least,  they  were 
not  borrowed  from  him,  and  if  they  are  to  be  found  in  Rousseau's  Social 
Contract,  they  were  taken  from  Locke,  as  Rousseau  is  known  to  have  drawn 
heavily  upon  Locke  for  this  little  work. 

The  supposed  influence  of  Rousseau  is  perhaps  best  stated  by  two  careful 
and  thoughtful  investigators  and  writers.  Thus,  Sir  Henry  Sumner  Maine 
says  in  his  Ancient  Law: 

The  American  lawyers  of  the  time,  and  particularly  those  of  Virginia, 
appear  to  have  possessed  a  stock  of  knowledge  which  differed  chiefly  from 
that  of  their  English  contemporaries  in  including  much  which  could  only 
have  been  derived  from  the  legal  literature  of  continental  Europe.  A  very 
few  glances  at  the  writings  of  Jefferson  will  show  how  strongly  his  mind  was 
affected  by  the  semi-juridical,  semi-popular  opinions  which  were  fashionable 
in  France,  and  we  cannot  doubt  that  it  was  sympathy  with  the  peculiar  ideas 
of  the  French  jurists  which  led  him  and  the  other  colonial  lawyers  who  guided 
the  course  of  events  in  America  to  join  the  specially  French  assumption  that 
"  all  men  are  born  equal  "  with  the  assumption,  more  familiar  to  Englishmen, 
that  all  men  are  born  free,  in  the  very  first  lines  of  their  Declaration  of  In- 
dependence. The  passage  was  one  of  great  importance  to  the  history  of  the 
doctrine  before  us.  The  American  lawyers,  in  thus  prominently  and  em- 
phatically affirming  the  fundamental  equality  of  human  beings,  gave  an  im- 
pulse to  political  movements  in  their  own  country,  and  in  a  less  degree  in 


36  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Great  Britain,  which  is  far  from  having  yet  spent  itself;  but  beside  this  they 
returned  the  dogma  they  had  adopted  to  its  home  in  France,  endowed  with 
vastly  greater  energy  and  enjoying  much  greater  claims  on  general  reception 
and  respect.1 

In  speaking  of  the  influence  of  Rousseau  and  his  followers,  John  Morley 
said,  in  his  life  of  Rousseau,  first  published  in  1873,  that: 

It  was  that  influence  which,  though  it  certainly  did  not  produce,  yet  did 
as  certainly  give  a  deep  and  remarkable  bias,  first  to  the  American  Revolu- 
tion, and  a  dozen  years  afterwards  to  the  French  Revolution.2 

In  The  Fortnightly  Review  for  1879,  Mr.  Morley,  returning  to  the  subject, 
declared  that : 

Nobody,  however,  who  has  examined  so  much  as  the  mere  surface  of 
the  question,  would  now  dream  of  denying  that  the  French  theories  of 
society  played  an  important  part  in  the  preparation  of  American  independ- 
ence.3 

As  a  colonist,  Jefferson  was,  in  his  earlier  days,  influenced  by  English 
liberal  writers,  for  the  purpose  of  the  colonists  was  to  show  that  as  English- 
men they  were  entitled  to  English  liberty  as  laid  down  in  English  writers  of 
repute.  The  Declaration  of  Independence  naturally  and  necessarily  embodied 
the  views  and  the  conception  of  government  upon  which  the  colonists  had 
made  their  stand. 

As  a  statesman,  and  especially  after  his  return  from  France,  where  he 
succeeded  Franklin  as  American  Minister,  Jefferson  may,  indeed,  have  been 
influenced  by  French  ideas  and  conceptions.4 

For  the  body  of  his  countrymen  who  had  not  visited,  much  less  resided  in 
France,  the  French  philosophers  came  with  the  French  troops  to  America, 
and  remained  after  the  French  Army  departed,  having  accomplished  its  pur- 
pose at  Yorktown.  It  is  believed  that  in  the  matter  of  philosophy  and  demo- 
cratic doctrine,  they  returned  with  more  than  they  brought. 

1  Sir  Henry  Sumner  Maine,  Ancient  Law,  10th  Edition,  1884.  pp.  91-92.  In  a  note  to  this 
passage,  published  in  his  edition  of  Ancient  Law,  p.  409,  Sir  Frederick  Pollock  thus  states 
what  is  believed  to  be  the  correct  and  the  prevailing  views  on  this  subject: 

"  This  is  not  the  place  to  speak  at  large  of  Rousseau's  influence  on  the  founders  of  Ameri- 
can independence  and  the  leaders  of  the  French  Revolution :  but  the  careful  research  of 
American  scholars  has  lately  shown  that  the  Principles  of  1789  owed  more  to  the  American 
Declaration  of  Independence  and  the  earlier  Bills  of  Rights  of  several  States  than  we  used  to 
suppose,  and  less  to  Rousseau,  and  that  the  language  of  the  American  constitutional  instru- 
ments proceeded  from  the  school  not  of  Rousseau  but  of  Locke."  (Scherger,  The  Evolution 
of  Modern  Liberty,  New  York.  1904). 

2  John  Morley,  Rousseau,  1873,  Vol.  1,  p.  188. 

3  John  Morley,  A  Word  with  Some  Critics,  The  Fortnightly  Review,  October,  1879,  p.  584. 

4  It  is  true  that  Tefferson  afterwards  "  drank  a  deep  draught  from  the  intoxicating  cup 
of  the  French  Revolution,"  but  we  do  not  think  that  in  1776  he  had  felt  the  French  political 
influence.  He  was,  we  know,  a  student  of  Locke,  and  Locke  asserted  the  natural  equality 
of  man  as  strongly  as  his  natural  liberty.  (W.  T.  Brantly,  Of  the  Influence  of  European 
Speculation  in  the  Formation  of  the  Federal  Constitution,  1880,  Southern  Law  Review, 
New  Series,  Vol.  VI,  p.  354-) 


Ill 

A  CONFEDERATION  OF  SOVEREIGN  STATES 

As  preliminary  to  the  very  able  discussions  of  the  constitution,  which  we  have  heard 
from  the  bar,  and  as  having  some  influence  on  its  construction,  reference  has  been  made 
to  the  political  situation  of  these  states,  anterior  to  its  formation.  It  has  been  said,  that 
they  were  sovereign,  were  completely  independent,  and  were  connected  with  each  other 
only  by  a  league.  This  is  true.  (Chief  Justice  Marshall  in  Gibbons  v.  Ogden,  9  Wheaton, 
I,  187,  decided  in  1824.)  - 

In  June  1776,  the  Convention  of  Virginia  formally  declared,  that  Virginia  was  a  free, 
sovereign,  and  independent  state;  and  on  the  4th  of  July,  1776,  following,  the  United  States, 
in  Congress  assembled,  declared  the  Thirteen  United  Colonies  free  and  independent  states; 
and  that  as  such,  they  had  full  power  to  levy  war,  conclude  peace,  &c.  I  consider  this  as 
a  declaration,  not  that  the  United  Colonies  jointly,  in  a  collective  capacity,  were  independent 
states,  &c.  but  that  each  of  them  was  a  sovereign  and  independent  state,  that  is,  that  each 
of  them  had  a  right  to  govern  itself  by  its  own  authority,  and  its  own  laws,  without  any 
controul  from  any  other  power  upon  earth. 

Before  these  solemn  acts  of  separation  from  the  Crown  of  Great  Britain,  the  war  between 
Great  Britain  and  the  United  Colonies,  jointly,  and  separately,  was  a  civil  war;  but 
instantly,  on  that  great  and  ever  memorable  event,  the  war  changed  its  nature,  and  became 
a  public  war  between  independent  governments;  and  immediately  thereupon  all  the 
rights  of  public  war  (and  all  the  other  rights  of  an  independent  nation)  attached  to  the 
government  of  Virginia;  and  all  the  former  political  connexion  between  Great  Britain  and 
Virginia,  and  also  between  their  respective  subjects,  were  totally  dissolved:  and  not  only 
the  two  nations,  but  all  the  subjects  of  each,  were  in  a  state  of  war;  precisely  as  in  the 
present  war  between  Great  Britain  and  France.  Vatt.  lib.  3.  c.  18.  s.  292,  295.  lib.  3.  c.  5, 
s.  70,  72,  and  73. 

From  the  4th  of  July,  1776,  the  American  States  were  de  facto,  as  well  as  de  jure,  in  the 
possession  and  actual  exercise  of  all  the  rights  of  independent  governments.  On  the  6th 
of  February,  1778,  the  King  of  France  entered  into  a  treaty  of  alliance  with  the  United 
States;  and  on  the  8th  of  Oct.  1782,  a  treaty  of  Amity  and  Commerce  was  concluded 
between  the  United  States  and  the  States  General  of  the  United  Provinces.  I  have 
ever  considered  it  as  the  established  doctrine  of  the  United  States,  that  their  independence 
originated  from,  and  commenced  with,  the  declaration  of  Congress,  on  the  4th  of  July, 
1776;  and  that  no  other  period  can  be  fixed  on  for  its  commencement;  and  that  all  laws 
made  by  the  legislatures  of  the  several  states,  after  the  declaration  of  independence,  were 
the  laws  of  sovereign  and  independent  governments.  (Mr.  Justice  Chase  in  Ware  v.  Hylton, 
3  Dallas  199,  pp.  224-225,  decided  in  1796.) 

The  court  entertains  no  doubt  that  after  the  4th  of  October  1776.  he  became  a  member 
of  the  new  society,  entitled  to  the  protection  of  its  government,  and  bound  to  that  govern- 
ment by  the  ties  of  allegiance. 

This  opinion  is  predicated  upon  a  principle  which  is  believed  to  be  undeniable,  that  the 
several  states  which  composed  this  Union,  so  far  at  least  as  regarded  their  municipal 
regulations,  became  entitled,  from  the  time  when  they  declared  themselves  independent,  to 
all  the  rights  and  powers  of  sovereign  states,  and  that  they  did  not  derive  them  from 
concessions  made  by  the  British  king.  The  treaty  of  peace  contains  a  recognition  of  their 
independence,  not  a  grant  of  it.  From  hence,  it  results,  that  the  laws  of  the  several  state 
governments  were  the  laws  of  sovereign  states,  and  as  such  were  obligatory  upon  the 
people  of  such  state,  from  the  time  they  were  enacted.  (Mr.  Justice  Cuslung  in  Mcllvaine 
v.Coxe,  4  Cranch,  209,  212,  decided  in  1808.) 

This  Court  has  decided,  "  That  there  was  no  territory  within  the  United  States,  that  was 
claimed  in  any  other  right  than  that  of  some  one  of  the  confederated  states;  therefore, 
there  could  be  no  acquisition  of  territory  made  by  the  United  States,  distinct  from,  or 
independent  of,  some  one  of  the  states ;  the  soil  and  sovereignty  were  as  much  theirs  at  the 

37 


38  THE    UNITED    STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

declaration  of  independence,  as  at  this  hour."  (1827.)  "Thus  stood  the  rights  of  the  par- 
ties at  the  commencement  of  the  revolution;  .  .  ."  (Mr.  Justice  Baldwin,  .1  General  View  of 
the  Origin  and  Nature  of  the  Constitution  and  Government  of  the  United  States,  1837,  p.  86.) 

The  People  of  this  State,  being  by  the  Providence  of  God,  free  and  independent,  have 
the  sole  and  exclusive  Right  of  governing  themselves  as  a  free,  sovereign,  and  independent 
State;  and  having  from  their  Ancestors  derived  a  free  and  excellent  Constitution  of  Gov- 
ernment whereby  the  Legislature  depends  on  the  free  and  annual  Election  of  the  People, 
they  have  the  best  Security  for  the  Preservation  of  their  civil  and  religious  Rights  and 
Liberties.  And  forasmuch  as  the  free  Fruition  of  such  Liberties  and  Privileges  as  Hu- 
manity, Civility  and  Christianity  call  for,  as  is  due  to  every  Man  in  his  Place  and  Propor- 
tion, without  Impeachment  and  Infringement,  hath  ever  been,  and  will  be  the  Tranquility 
and  Stability  of  Churches  and  Commonwealths;  and  the  Denial  thereof,  the  Disturbance, 
if  not  the  Ruin  of  both. 

Paragraph  1.  Be  it  enacted  and  declared  by  the  Governor,  and  Council,  and  House  of 
Representatives,  in  General  Court  assembled,  That  the  ancient  Form  of  Civil  Government, 
contained  in  the  Charter  from  Charles  the  Second,  King  of  England,  and  adopted  by  the 
People  of  this  State,  shall  be  and  remain  the  Civil  Constitution  of  this  State,  under  the  sole 
authority  of  the  People  thereof,  independent  of  any  King  or  Prince  whatever.  And  that  this 
Republic  is,  and  shall  forever  be  and  remain,  a  free,  sovereign  and  independent  State,  by 
the  Name  of  the  STATE  of  CONNECTICUT.  (Constitution  of  Connecticut,  1776,  Ben: 
Perlcy  Poore,  The  Federal  and  State  Constitutions,  Colonial  Charters,  and  other  Organic 
Laws  of  the  United  States,  1877,  Part  I,  pp.  257-258.) 

The  people  inhabiting  the  territory  formerly  called  the  province  of  Massachusetts  Bay- 
do  hereby  solemnly  and  mutually  agree  with  each  other  to  form  themselves  into  a  free, 
sovereign  and  independent  body-politic  or  State,  by  the  name  of  the  commonwealth  of 
Massachusetts.  (Constitution  of  Massachusetts,  1780,  Part  The  Second,  The  Frame  of 
Government,  Ben:  Perlcy  Poore,  The  Federal  and  State  Constitutions,  Colonial  Charters, 
and  other  Organic  Laws  of  the  United  States,  1877,  Part  I,  p.  960.) 

This  alliance,  league,  or  confederacy  of  the  states  with  each  other,  can  leave  no  doubt, 
that  up  to  the  time  of  the  final  ratification  in  March,  1781,  each  state  was  separately 
sovereign  in  its  own  inherent  right ;  and  so  remained  as  to  all  power  not  expressly  dele- 
gated, as  was  declared  in  the  second  article  [of  Confederation].  The  third  article  is  also 
conclusive,  that  the  object  of  the  alliance  was  to  maintain  and  perpetuate  their  separate 
sovereignty.  This  is  the  more  manifest,  when  these  articles  are  taken  in  connection  with 
the  alliance  of  the  states  with  France.  .  .  . 

"  The  essential  and  direct  end  of  the  present  defensive  alliance,  is  to  maintain  effectually, 
the  liberty,  sovereignty,  and  independence,  absolute  and  unlimited,  of  the  said  United 
States,  as  well  in  matters  of  government,  as  of  commerce."  In  the  11th  article,  the  parties 
make  a  mutual  guaranty:  in  -that  of  France.  "His  most  Christian  majesty  guaranties, 
on  his  part,  to  the  United  States,  their  liberty,  sovereignty,  and  independence,  absolute 
and  unlimited,  as  well  in  matters  of  government  as  commerce;  also  their  posseesions, 
and  the  additions  or  conquests  that  their  confederation  may  make  during  the  war,"  &c. 
1    Laws,   95,   98. 

This  guaranty  was  fulfilled  by  the  treaty  of  peace,  in  which  "His  Britannic  majesty 
acknowledges  the  said  United  States,  to  wit:  New  Hampshire,  &c,  to  be  free,  sovereign 
and  independent  states."  I  Laws,  196.  This  recognition,  relating  back  to  the  separate 
or  unanimous  declarations  by  the  states,  as  this  Court  have  held  it ;  has  the  same 
effect,  as  if  the  states  had  then  assumed  the  same  position,  by.  the  previous  authority  of 
the  king :  the  treaty  not  being  a  grant,  but  a  recognition,  and  subsequent  ratification  of 
their  pre-existing  condition :  and  all  acts  which  had  declared  and  defined  it  previous  to 
the  treaty,  related  back  to   1776. 

Such  being  the  relations  of  the  several  states,  in  their  federal  and  foreign  concerns, 
it  follows,  that  as  to  their  internal  concerns,  they  were  in  the  same  attitude  of  absolute 
and  unlimited  sovereignty,  before  the  articles  of  confederation,  as  they  were  afterwards, 
except  so  far  as  they  abridged  it.  Each  was  a  party  to  the  treaty  of  alliance  and  peace, 
and  each  was  bound  by  the  guarantee  to  France,  after  the  confederation  was  abolished, 
and  the  constitution  was  established,  as  firmly  as  before :  the  states  who  delayed  their 
ratification  remained  so  bound,  for  they  could  by  no  act  of  their  own,  impair  the  rights 
of  France:  and  they  were  equally  entitled  to  the  effects  of  the  treaty  of  peace,  whether 
they  became  constituent  parts  of  the  L'nion,  by  ratifying  the  constitution,  or  remained  foreign 
states,  by  not  adopting  it.  Their  state  constitutions  and  governments,  remained  unimpaired 
by  any  surrender  of  their  rights;  so  .that  of  consequence,  their  sovereignty  was  perfect, 
so  long  as  they  continued  free  from  any  federal  shackles ;  so  the  states  acted,  and  so  the 


A    CONFEDERATION    OF.  SOVEREIGN    STATES  39 

people  of  each  declared,  in  all  their  conventions,  from  1776  to  1780.  (Mr.  Justice  Baldivin,  A 
General  View  of  the  Origin  and  Nature  of  the  Constitution  and  Government  of  the  United 
States,  1837,  pp.  79-Si-) 

The  problem  before  the  Convention  was  to  form  a  confederation  of  States  which  should 
possess  the  requisite  vigor  without  being  a  consolidation  of  the  States.  They  knew  that 
the  latter  plan  would  be  rejected  by  their  constituents,  although  Alexander  Hamilton  and 
others  thought  that  there  could  be  no  other  permanent  solution  of  the  problem.  The  Con- 
vention sought  for  light  and  guidance  in  the  example  of  other  confederated  governments. 
They  looked  abroad  to  see  how  other  countries  had  extricated  themselves  from  similar 
difficulties.  They  examined  the  history  of  all  federations.  Americans  at  that  time  had 
no  need  to  refer  to  any  experience  but  their  own,  if  they  would  learn  the  peculiar  danger 
of  a  confederation.  They  had  too  often  seen  the  Continental  Congress  in  the  attitude 
of  a  helpless  suppliant  before  States  that  made  a  jest  of  its  requisitions,  to  suppose  that 
any  national  government  which  could  not  raise  a  revenue  of  its  own  would  be  adequate 
to  the  exigencies  of  the  Union.  We  are  therefore  principally  indebted  to  the  distresses 
of  the  Confederation  for  the  greatest  political  invention  of  the  Constitution.  All  previous 
confederacies  of  which  history  contains  any  record  had  acted  on  the  component  States, 
and  not  on  individuals.  The  Constitution,  by  its  provision  for  operating  upon  the  individual 
citizen,  affords  a  far  better  guarantee  of  permanence  than  the  hegemony  of  any  powerful 
member  of  the  Confederation  could  do.  The  Constitution  thus  gave  a  new  maxim  of 
unquestionable  value  to  the  science  of  politics.  The  Swiss  Union  of  1848  imitated  it  in 
this  regard,  and  thus  finally  healed  the  dissensions  between  the  cantons.  (W .  T.  Brantly, 
Of  the  Influence  of  European  Speculation  in  the  Formation  of  the  Federal  Constitution, 
1880,  in  Southern  Law  Reziew,  New  Series,  Vol.  VI.  pp.  361-362.) 


CHAPTER  III 


A    CONFEDERATION    OF    SOVEREIGN    STATES 


Mr.  Dickinson's 
Plan 


A  United 
States  Congress 


Under  the  third  resolution  proposed  by  Richard  Henry  Lee  on  June  7, 
1776,  that  "  a  plan  of  confederation  be  prepared  and  transmitted  to  the  re- 
spective Colonies  for  their  consideration  and  approbation,"  a  committee  of 
one  from  each  colony  was  chosen  on  the  12th  to  report  a  form  of  confed- 
eration. This  committee  consisted  of  "  a  member  from  each  colony  "  with 
John  Dickinson  of  Delaware  as  chairman.  A  plan  drafted  by  Mr.  Dickinson 
was  reported  on  July  12th  J  and  was  considered  twelve  days  later  in  the  com- 
mittee of  the  whole  house  and  was  the  subject  of  debate  from  time  to  time 
until  November  15,  1777,  when  it  was  adopted  by  the  Congress  with  some 
important  amendments.2  The  Congress  directed  that  "  these  articles  shall  be 
proposed  to  the  legislatures  of  all  the  United  States,  to  be  considered,  and  if 
approved  of  by  them,  they  are  advised  to  authorize  their  delegates  to  ratify 
the  same  in  the  Congress  of  the  United  States;  which  being  done,  the  same 
shall  become  conclusive."  3  A  circular  letter  to  accompany  the  articles,  in 
accordance  with  this  resolution,  was  adopted  on  November  17,  1777.  A  form 
of  ratification  was  adopted  June  26,  1778.  At  various  dates  the  States  ap- 
proved the  Articles  in  the  manner  recommended  by  the  Congress,  the  last 
State  being  Maryland,  whose  delegates  signed  on  behalf  of  that  State,  March 
1,  1781.  Thereupon  the  United  States  had,  for  the  first  time,  a  form  of 
government  in  law  as  well  as  in  fact  and  on  the  succeeding  day  the  Congress 
met  for  the  first  time  under  this  form  of  government. 

It  may  be  observed  in  this  connection,  before  proceeding  to  an  examina- 
tion of  the  successive  steps  by  which  the  Articles  of  Confederation  assumed 
form  and  shape,  that  the  Congress,  during  this  period,  was  intent  upon  win- 
ning the  independence  which  the  Articles  were  to  regulate,  and  they  were 
therefore  of  secondary  importance ;  that,  for  one  reason  or  another,  the  mem- 
bership of  the  committee  changed  so  that,  at  the  date  of  their  adoption  by 
Congress,  only  one  of  the  original  members  of  the  committee  was  still  a  mem- 
ber thereof  and  that  even  he  was  absent  on  that  occasion.  Changing  member- 
ship, changing  conditions,  the  differences  between  the  States  and  the  difficulty 
of  reconciling  them  consumed  time  and  patience,  with  the  inevitable  result  that 

1  Journals  of  the  Continental  Congress,  Vol.  v,  pp.  546-554. 
-  Ibid.,  Vol.  ix,  pp.  907-928. 
s  Ibid.,  p.  925. 

40 


A    CONFEDERATION    OF    SOVEREIGN    STATES 


41 


the  Articles  of  Confederation  were  a  compromise,  just  as  the  Constitution 

of  1787  creating  the  more  perfect  Union  of  the  States  was  a  compromise. 

In  the  Congress  as  in  the  Convention,  the  large  States  wanted  a  larger  influence  jind  small 

than  the  smaller,  to  which  the  reply  was  then,  as  now  in  the  society  of  nations: 

a  little  colony  has  its  all  at  stake  as  well  as  a  great  one ;  our  identity  is  a 

precious  thing;  we  do  not  propose  to  be  swallowed  up. 

In  addition  to  this  difference  of  view  as  to  the  rights  of  the  States,  large 
and  small,  the  motives  of  the  sections  were  questioned  and  a  lack  of  confi- 
dence expressed,  impossible  to  overcome  on  the  moment,  and  indeed  overcome 
in  the  Constitutional  Convention  only  after  years  of  suffering  in  a  common 
cause  when  the  statesmen  of  all  the  sections  had  learned  to  know,  and  there- 
fore rightly  to  appreciate  one  another.  New  England,  which  may  be  said  to 
have  brought  about  the  Revolution,  was  not  popular  and  was  viewed  with 
suspicion  and  jealousy,  Benjamin  Harrison  of  Virginia  saying  that  "  the 
Yankees  "  ruled  as  absolutely  in  Congress  "  as  the  Grand  Turk  in  his  domin- 
ions." 1  This  idea  did  not  stop  with  Virginia,  but  pervaded  the  south,  for 
Edward  Rutledge  of  South  Carolina,  wrote : 

The  Force  of  their  Arms  I  hold  exceeding  Cheap,  but  I  confess  I  dread 
their  over-ruling  Influence  in  Council.  I  dread  their  low  Cunning  and  those 
.  .  .  Principles  which  Men  without  Character  and  without  Fortune  in  general 
possess,  which  are  so  captivating  to  the  lower  class  of  Mankind.2 

New  England,  on  its  part,  viewed  its  neighbors  to  the  south  with  equal  sus- 
picion and  distrust,  not  unmixed  with  contempt,  if  John  Adams  is  to  be  cred- 
ited, who  says  of  them : 

The  dons,  the  bashaws,  the  grandees,  the  patricians,  the  sachems,  the  na- 
bobs, call  them  by  what  name  you  please,  sigh,  and  groan,  and  fret,  and  some- 
times stamp,  and  foam,  and  curse,  but  all  in  vain.3 

In  view  of  such  circumstances  the  wonder  is  that  the  confederation  took  place, 
not  that  the  instrument  of  confederation  was  faulty. 

The  Articles  exist  in  two  forms,  in  the  draft  in  Dickinson's  handwriting, 
laid  before  the  Congress  on  July  12,  1776,  and  in  the  amended  form  in  which 
Dickinson's  draft  was  approved  by  the  Congress  on  November  15,  1777, 
recommended  to  the  States  for  their  ratification  and  ultimately  ratified  by 
them.4  The  essentials  of  the  completed  instrument  are  contained  in  Dickin- 
son's draft,  which  suggests  a   familiarity  with   Franklin's  project,   notably 

i  E.  P.  Oberholtzer,  Robert  Morris,  1903,  p.  37. 

2  To  John  Jay,  June  29,  1776.  The  Correspondence  and  Public  Papers  of  John  Jay,  H.  P. 
Johnston  ed.,  Vol.  i,  p.  67. 

3  To  Patrick  Henrv,  June  3,  1776.  The  Works  of  John  Adams,  C.  F.  Adams  ed..  Vol.  ix, 
p.  387. 

4  The  dates  of  ratification  were:  Massachusetts,  Rhode  Island,  Connecticut,  New  York, 
Pennsylvania,  Virginia,  South  Carolina,  July  9,  1778  —  North  Carolina,  July  21,  1778  —  Geor- 
gia, July  24,  1778  — New  Jersey,  November  26,  1778  — Delaware,  February  22,  1779  — Mary- 
land, March  1,  1781. 


The  Two 
Forms  of 
the  Articles 


42 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Nature  of 
the  Union 


Powers 
Renounced 


in  the  fact  that  the  States,  although  independent,  are  spoken  of  as  colonies. 
Some  of  the  amendments  are  far  from  happy,  especially  those  indicating  the 
amounts  of  revenue  which  each  colony  is  to  raise  and  to  contribute  to  the 
general  government.  In  the  eleventh  article  of  Dickinson's  draft  it  is  provided 
that  "  All  Charges  of  Wars  and  all  other  Expences  that  shall  be  incurred 
for  the  common  Defence,  or  general  Welfare,  and  allowed  by  the  United 
States  assembled,  shall  be  defrayed  out  of  a  common  Treasury,  which  shall 
be  supplied  by  the  several  Colonies  in  Proportion  to  the  Number  of  Inhab- 
itants of  every  Age,  Sex  and  Quality,  except  Indians  not  paying  Taxes,  in 
each  Colony  .  .  ."  1  In  the  amended  text  the  contributions  of  the  States  are 
to  be  "  in  proportion  to  the  value  of  all  land  within  each  State," — an  amend- 
ment, it  may  be  said  in  passing,  which  appears  to  have  made  the  Articles  un- 
workable in  practice,  however  acceptable  it  may  have  been  in  theory. 

It  is  not  meant,  in  this  connection,  to  express  a  preference  for  a  poll  as 
distinguished  from  a  land  tax,  but  the  shifts  to  which  the  Congress  was  put 
to  increase  the  value  of  land,  and  thus  increase  the  State  quotas,  exposed  that 
body  to  ridicule  and  brought  the  government  into  contempt  in  a  way  which 
would  not  have  been  possible  if  the  text  of  the  original  draft  had  been  adopted. 

The  government  of  the  Confederacy  was  to  be  styled  the  United  States  of 
America,  in  which  each  State  retained  "  its  sovereignty,  freedom  and  inde- 
pendence, and  every  power,  jurisdiction  and  right,"  not  "  expressly  delegated 
to  the  United  States,  in  Congress  assembled."  The  framers  of  this  instru- 
ment were  well  informed  as  to  the  nature  of  the  government  which  they  were 
establishing.  It  was  to  be  a  Union  of  States,  not  a  single  State.  It  was  to 
be  a  perpetual  "  league  of  friendship,"  "  for  their  common  defence,  the  se- 
curity of  their  liberties  and  their  mutual  and  general  welfare,"  in  which  the 
States  pledged  themselves  to  protect  one  another  against  attack  of  any  kind 
and  from  any  quarter. 

For  the  management  of  the  general  interests  of  the  United  States  there 
was  to  be  a  Congress,  which  should  meet  once  a  year  and  exercise  the  powers 
with  which  the  Confederation  was  vested.  Each  of  the  States  was  to  be 
represented  by  not  less  than  two  nor  more  than  seven  delegates,  appointed  and 
paid  by  them,  who  might  not  serve  as  delegates  more  than  three  years  out  of 
any  six.  The  States  had  an  equal  voice,  each  retaining  and  casting  a  single 
vote,  notwithstanding  the  greater  or  less  number  of  deputies  which  they  might 
choose  to  send  to  Congress. 

It  was  recognized  that  the  purpose  for  which  the  Union  was  formed  could 
not  be  effected  if  the  States  did  not,  in  addition  to  the  powers  conferred  upon 
the  Congress,  renounce  the  exercise  of  some  of  the  powers  inherent  in  sov- 
ereignty,  freedom  and  independence.     They  therefore  expressly  renounced 

1  Journals  of  the  Continental  Congress,  Vol.  v,  p.  548. 


A    CONFEDERATION    OF   SOVEREIGN    STATES  43 

the  right  of  making  treaties  with  foreign  countries  or  of  entering  into  treaties 
or  alliances  between  themselves  without  the  consent  of  the  Congress,  and 
they  pledged  themselves  not  to  lay  any  imposts  or  duties  which  might  inter- 
fere with  the  treaties  which  the  Confederation  might  make  with  foreign  coun- 
tries. While  maintaining  the  right  to  keep  up  a  militia,  they  renounced  the 
right  to  create  and  maintain  an  army  or  navy  without  the  consent  of  Con- 
gress, and  they  likewise  renounced  the  right  to  engage  in  war,  without  the 
consent  of  Congress,  except  when  actually  attacked.  They  reserved  to  them- 
selves the  right  to  appoint  regimental  officers  of  the  regiments  raised  for  con- 
tinental service,  but  vested  the  appointment  of  the  general  officers  in  Congress. 

They  endowed  the  general  Congress  with  broad  powers,  suggesting  but  Powers 
not  actually  making  of  the  States  a  nation  —  powers  with  which  the  Congress 
under  the  Constitution  has  been  invested  and  which  with  sundry  additions 
have  been  deemed  adequate,  doubtless  due  to  the  fact  that  the  government 
under  the  latter  instrument  acts  directly  upon  the  people  of  the  States,  thus 
executing  the  powers  with  which  it  is  invested  instead  of  relying  upon  the 
States  as  its  agents.  Among  these  powers  were  the  sole  right  of  declaring  ^eand 
war  and  concluding  peace,  of  sending  and  receiving  embassies,  of  entering 
into  treaties  and  alliances,  of  issuing  currency,  of  fixing  a  standard  of 
weights  and  measures,  of  establishing  and  regulating  post  offices  throughout 
the  United  States,  of  appointing  all  officers  of  the  army  with  the  exception 
of  regimental  officers  of  contingents  raised  by  the  States,  and  all  naval  officers, 
and  of  making  rules  for  the  government  of  the  land  and  naval  forces  and 
directing  their  operations.  The  Congress  was  also  empowered  to  ascertain 
the  sums  of  money  necessary  for  the  service  of  the  United  States  and  to 
apply  it  to  the  public  service,  to  borrow  money  or  emit  bills  of  credit,  to  build 
and  equip  a  navy,  to  agree  upon  the  number  of  land  forces  and  to  make  requi- 
sitions, binding  each  State  to  furnish  its  quota  "  in  proportion  to  the  number 
of  white  inhabitants  in  each  State."  In  addition,  the  Congress  was  spe- 
cifically authorized  to  appoint  a  committee  of  States,  consisting  of  a  delegate 
from  each  State,  to  sit  during  the  recess  of  the  Congress  and  to  carry  on  the 
government  during  such  recess,  to  appoint  other  committees  and  civil  officers 
necessary  for  the  management  of  the  general  forces  of  the  United  States  under 
their  direction,  and  to  appoint  from  the  members  of  Congress  a  president, 
who  should  not  preside  for  more  than  one  in  any  term  of  three  years. 

These  powers  were  granted  because  they  were  felt  to  be  necessary  to 
secure  the  independence  of  the  United  States  and  to  maintain  peace  and  har- 
mony among  the  States  themselves,  but  in  granting  them  the  States  placed 
what  they  conceived  to  be  a  salutary  check  upon  their  exercise,  providing 
that  the  more  important  of  them,  which  they  specified,  should  be  exercised 
only  with  the  consent  of  nine  States,  and  in  the  tenth  of  the  Articles  they 


44  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

vested  the  committee  of  the  States,  or  any  nine  of  them,  with  power  to  execute 
during  the  recesses  of  Congress  such  powers  as  the  Congress  might  delegate  to 
the  committee,  or  any  nine  of  them,  but  withheld  from  them  any  power  which 
the  Congress  itself  could  exercise  only  with  the  consent  of  nine  States,  all 
of  which  were  specified  and  enumerated  in  the  following  paragraph  of  the  ninth 
article,  which  also  stated  specifically  the  requirement  of  a  majority  in  all  other 
matters : 

The  United  States,  in  Congress  assembled,  shall  never  engage  in  a  war,  nor 
grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor  enter  into  any 
treaties  or  alliances,  nor  coin  money,  nor  regulate  the  value  thereof,  nor  as- 
certain the  sums  and  expenses  necessary  for  the  defence  and  welfare  of  the 
United  States,  or  any  of  them :  nor  emit  bills,  nor  borrow  money  on  the 
credit  of  the  United  States,  nor  appropriate  money,  nor  agree  upon  the  num- 
ber of  vessels  of  war  to  be  built  or  purchased,  or  the  number  of  land  or  sea 
forces  to  be  raised,  nor  appoint  a  commander  in  chief  of  the  army  or  navy, 
unless  nine  states  assent  to  the  same ;  nor  shall  a  question  on  any  other  point, 
except  for  adjourning  from  day  to  day,  be  determined,  unless  by  the  votes  of 
a  majority  of  the  United  States,  in  Congress  assembled. 

The  renunciation  of  the  right  which  sovereign  States  possess,  and  unfor- 
tunately exercise,  of  engaging  in  war  among  themselves,  and  also  the  renun- 
ciation of  the  right  to  enter  into  treaties  and  agreements  with  themselves 
without  the  consent  of  the  Congress,  made  it  necessary  to  provide  some  method 
of  settling  disputes  which  might  arise  between  the  States,  and  which  other- 
wise would  remain  unsettled  because  of  the  renunciation  of  war  and  of  diplo- 
matic negotiation.  In  certain  cases  of  an  international  character,  which 
might,  in  addition,  give  rise  to  disputes  among  the  States,  the  Congress  was 
authorized  to  establish  "  rules  for  deciding,  in  all  cases,  what  captures  on 
land  or  water  shall  be  legal,  and  in  what  manner  prizes,  taken  by  land  or 
naval  forces  in  the  service  of  the  United  States,  shall  be  divided  or  appro- 
priated ;  '*  to  appoint  "  courts  for  the  trial  of  piracies  and  felonies  committed 
on  the  high  seas ;  "  and  to  establish  "  courts  for  receiving  and  determining, 
finally,  appeals  in  all  cases  of  captures ;  provided,  that  no  member  of  Congress 
shall  be  appointed  a  judge  of  any  of  the  said  courts." 
Congress  For  disputes  that  might  arise  between  themselves,  for  which  no  tribunal 

Appellate  existed,  it  was  provided  in  the  ninth  article  "  that  the  United  States,  in  Con- 

jurisdiction  L 

gress  assembled,  shall  also  be  the  last  resort  on  appeal  in  all  disputes  and 
differences  now  subsisting,  or  that  hereafter  may  arise  between  two  or  more 
states  concerning  boundary,  jurisdiction  or  any  other  cause  whatever,"  and 
specifically  mentioning  "  all  controversies  concerning  private  right  of  soil, 
claimed  under  different  grants  of  two  or  more  states."  The  article  likewise 
provided  the  method  of  settlement,  which  was,  briefly : 

The  agents  of  the  States  in  controversy  appeared  before  the  Congress, 


A    CONFEDERATION    OF   SOVEREIGN    STATES  45 

stating  their  controversy  and  asking  for  the  appointment  of  commissioners  to 
form  a  temporary  court  or  tribunal.  If  the  agents  agreed  upon  the  members 
of  the  court  it  was  organized  and  the  case  referred  to  it.  If,  however,  the 
agents  did  not  agree  upon  the  members  of  the  court,  the  Congress  selected 
three  persons  from  each  of  the  thirteen  States,  and  from  the  thirty-nine  thus 
chosen  the  names  were  to  be  struck,  beginning  with  the  defendant,  until  thir- 
teen names  were  left.  From  this  list  of  thirteen  not  less  than  seven  nor  more 
than  nine  were  to  be  drawn  by  lot,  and  of  this  number  any  five  could  form 
the  court.  In  the  absence  of  the  agent  of  any  one  of  the  litigating  States,  or 
upon  his  refusal  to  strike  as  provided  by  the  article,  the  Secretary  of  the 
Congress  was  to  act  in  his  stead. 

It  was  foreseen  that  changes  in  the  Articles  of  Confederation  might  be 
necessary,  but  as  the  instrument  was  a  diplomatic  agreement  no  alteration  was 
to  be  made  unless  agreed  to  in  the  Congress  and  "  afterwards  confirmed  by 
the  legislatures  of  every  State." 

From  this  brief  summary  it  will  be  observed  that  the  Articles  of  Confed- 
eration provide  a  government,  with  limited  and  specifically  enumerated  pow- 
ers, which  were  only  to  be  exercised  with  the  consent  of  nine  or  of  a  majority 
of  the  sovereign,  free  and  independent  States  of  which  the  Confederation  was 
composed.  It  will  be  further  observed  that  the  legislative  was  likewise  the 
executive  branch  of  the  government,  in  so  far  as  either  existed,  because  the 
President  of  the  Congress  was  the  presiding  officer  but  possessed  of  no  inde- 
pendent powers,  and  the  committee  of  the  States  was  appointed  by  the  Con- 
gress for  the  exercise  of  certain,  but  not  all,  of  the  powers  of  the  Congress  Suggestion 
during  its  recess.  There  is  no  doubt  a  suggestion  of  a  judiciary,  but  the  judi-  icia 
ciary,  such  as  it  was,  was  only  constituted  in  the  case  of  the  court  of  appeals 
for  prize  cases,  and  from  time  to  time  temporary  tribunals  were  to  be  chosen  by 
the  Congress  for  the  trial  of  controversies  between  the  States ;  cases  involving 
piracies  and  felonies  were  to  be  tried  by  the  private  courts  of  the  States. 

There  is  here  no  clear  and  conscious  recognition  of  the  threefold  divi- 
sion of  government  so  conspicuous  in  the  Constitutions  of  each  of  the  thir- 
teen States  composing  the  Confederation  and  a  fundamental  though  unex- 
pressed principle  of  the  Constitution  which  succeeded  the  Articles  of  Con- 
federation, a  conception  which  was  reenforced  from  French  sources,  due  to 
the  alliance  of  France  which  so  powerfully  contributed  to  making  the  Declara- 
tion of  Independence  a  reality. 

The  defects  of  the  Articles  of  Confederation  have  been  pointed  out  by   Defects 
every  historian  of  the  United  States  who  has  had  occasion  to  deal  with  this 
period  of  our  history.     The  Articles  were  indeed  defective.     They  were  not 
however  so  defective  as  the  critics  would  have  us  believe,  and  even  if  they  were 
it  would  seem  to  be  wiser  to  consider  the  difficulties  of  the  situation  and  to 


46  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

regard  the  Articles  of  Confederation  as  a  step  to  a  more  perfect  Union,  and  a 
very  important  one,  than  to  deny  them  any  claim  upon  our  consideration. 
The  Articles  were  not  to  blame  if  faulty,  it  was  the  defective  vision  of  the 
statesmen  who  drafted  them  and  of  the  States  which  were  unwilling  to  grant 
a  general  government  more  extensive  powers.  It  is  easy  for  us  to  see  the 
advantages  of  a  closer  union,  because  we  have  benefited  by  its  blessings,  but 
a  union  of  the  kind  of  the  Constitution  was  hitherto  unknown  in  the  history 
of  nations,  and  the  necessity  of  a  broader  and  more  powerful  general  gov- 
ernment, acting  directly  upon  the  States  and  not  through  the  States,  was  not 
likely  to  be  granted  by  colonies  which  had  revolted  because  of  the  attempt 
of  the  mother  country  to  impose  its  authority  from  above,  and  to  impose 
the  acts  of  a  supreme  legislature  upon  the  colonies,  overriding  the  local  legis- 
latures, in  order  to  make  the  acts  of  Parliament  apply  to  the  individual  with- 
out consideration  of  the  colonies  as  such. 

The  purpose  of  the  Revolutionary  statesmen  was  to  overthrow  what  they 
considered  the  tyranny  of  the  mother  country,  claiming  supremacy  in  all  mat- 
ters; it  was  not  to  create  a  domestic  tyrant  in  the  place  of  the  imperial  Parlia- 
ment. Without  compromise  and  concession  and  the  safeguarding  of  the 
States  and  their  peoples  against  the  aggression  of  the  general  government, 
American  statesmen  would  not  have  agreed  to  the  provisions  of  the  Constitu- 
tion of  the  United  States;  and  the  different  States,  in  agreeing  to  it,  insisted 
upon  certain  amendments,  which  were  proposed  by  the  first  Congress  under 
the  Constitution  in  1789  and  added  to  that  instrument  two  years  later.  And 
even  then  two  States,  North  Carolina  and  Rhode  Island,  refused  to  ratify 
the  Constitution  and  did  so  only  after  it  had  gone  into  effect  and  the  ten 
amendments  to  it  had  been  proposed  and,  in  the  case  of  Rhode  Island, 
ratified. 
Excellences  While  recognizing  the  defects  of  the  Confederation,  which  were  indeed 

obvious  to  those  who  wished  union  under  a  constitution  rather  than  a  diplo- 
matic union,  competent  judges  nevertheless  recognized  its  excellences.  It  is 
noteworthy  that  George  Washington,  who  had  suffered  from  the  defects  of 
the  Confederation  more  than  any  man  living,  nevertheless  had  a  good  word 
to  say  for  the  union.1  John  Jay  was  also  qualified  to  speak,  as  he  had  been 
President  of  the  Congress  and  as  Secretary  of  Foreign  Affairs  he  felt  the 
imperfections  of  the  system,  especially  in  so  far  as  foreign  relations  were 
concerned.     Yet  he  was  not  pessimistic,  saying  of  it:     "  Our  federal  govern- 

1  In  a  letter  to  Benjamin  Harrison  dated  January  18,  1784,  General  Washington  said: 
"  That  the  prospect  before  us  is  fair  .  .  .  none  can  deny;  ...  I  believe  all  things  will  come 
right  at  last,  .  .  .  The  disinclination  of  the  individual  States  to  yield  competent  powers  to 
Congress  for  the  federal  government,  .  .  .  will,  if  there  is  not  a  change  in  the  system,  be 
our  downfall  as  a  nation."  An  extension  of  federal  powers,  he  believed,  would  "  make  us 
one  of  the  most  wealthy,  happy,  respectable  and  powerful  nations  that  ever  inhabited  the 
terrestrial  globe."  W.  C.  Ford,  The  Writings  of  George  Washington,  Vol.  x,  pp.  344-6. 
See  also  Sparks,  Writings  of  George  Washington,  Vol.  ix,  p.  11. 


A    CONFEDERATION    OF   SOVEREIGN    STATES 


47 


ment  has  imperfections,  which  time  and  more  experience  will,  I  hope,  effectually 
remedy."  *  Thomas  Jefferson,  it  will  be  admitted,  was  also  qualified  to  speak, 
and  he  probably  expressed  the  view  of  most  men  of  his  day  when  he  said  that 
"  with  all  the  imperfections  of  our  present  government  it  is  without  compari- 
son the  best  existing,  or  that  ever  did  exist."  -  John  Marshall,  whom  many 
regard  as  the  creator  of  our  union  through  his  opinions  as  Chief  Justice  of 
the  Supreme  Court,  felt  that  if  the  Articles  of  Confederation  preserved  the 
idea  of  union  until  a  more  efficient  system  was  adopted,  which  they  certainly 
did  and  more,  that  then  "  this  alone  is  certainly  sufficient  to  entitle  that  instru- 
ment to  the  respectful  recollection  of  the  American  people  and  its  framers  to 
their  gratitude."  3 

From  a  national  point  of  view  the  Articles  were  defective;  from  an  inter- 
national point  of  view  they  offered  an  example  of  a  union  of  sovereign,  free 
and  independent  States  much  closer  than  that  of  the  society  of  nations,  and,  in 
spite  of  their  imperfections,  indeed  because  of  their  imperfections,  they  show, 
it  is  believed,  how  the  society  of  nations  can  be  organized  as  a  Confederation 
without  involving  the  sacrifice  of  sovereignty,  should  the  members  of  that 
society  be  inclined  to  consider  a  conscious  and  closer  union  than  exists  today. 

While  the  defects  of  the  Confederation  were  the  subject  of  debate  in  the 
Congress,  of  discussion  in  the  press,  the  talk  alike  of  men  of  affairs  and  of 
private  citizens,  and  the  topic  of  correspondence  if  not  its  cause,  among  lead- 
ers of  thought  of  the  period,  James  Madison,  to  whose  untiring  efforts  the 
world  is  principally  indebted  for  the  American  Constitution,  has,  as  was  to  be 
expected,  stated  more  elaborately  than  any  one  of  his  contemporaries  the  weak- 
ness and  the  inadequacy  of  the  Articles  of  Confederation  in  a  memorandum 
prepared  on  the  eve  of  the  Convention,  called  for  the  sole  and  express  purpose 
of  recommending  "  a  Federal  constitution  adequate  to  the  exigencies  of  gov- 
ernment and  the  preservation  of  the  Union." 

In  a  paper  written  well  nigh  fifty  years  after  the  event,  intended,  appar- 
ently, as  a  preface  to  the  Debates  of  the  Convention,  which  he  himself  attended 
and  reported  with  his  own  hand,  he  gives  in  the  following  passage  the  reasons 
why  his  testimony  on  this  point  should  be  accepted. 

Having  served  as  a  member  of  Cong*,  through  the  period  between  Mar. 
1780  &  the  arrival  of  peace  in  1783,  I  had  become  intimately  acquainted  with 
the  public  distresses  and  the  causes  of  them.  I  had  observed  the  successful 
opposition  to  every  attempt  to  procure  a  remedy  by  new  grants  of  power  to 

1  Letter  to  Lord  Lansdown,  April  16,  1786.     William  Jay,  The  Life  of  John  Jay,  1833,  Vol. 
ii,  p.  183. 

2  Letter  to  E.  Carrington,  Paris,  August  4,  1787.     Writings  of  Thomas  Jefferson,  Ford 
ed.,  Vol    iv,  p.  424. 

In  a  letter  to  M.  de  Meusnier,  Jan.  24,  1786.  Mr.  Jefferson  said  : 

"  The  Confederation  is  a  wonderfully  perfect  instrument  considering  the  circumstances 
under  which  it  was  formed."     (Ford  ed.,  iv.  141.) 

3  The  Life  of  George  Washington,  by  John  Marshall,  Philadelphia,  1805,  v.  4,  p.  416. 


International 
Significance 


James 
Madison's 
Summary 
of  the 
Weakness 


48  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Cong8.  I  had  found  moreover  that  despair  of  success  hung  over  the  com- 
promising provision  of  April  1783,  for  the  Public  necessities,  which  had  been 
so  elaborately  planned  and  so  impressively  recommended  to  the  States.  Sym- 
pathizing, under  this  aspect  of  affairs,  in  the  alarm  of  the  friends  of  free  Gov', 
at  the  threatened  danger  of  an  abortive  result  to  the  great  &  perhaps  last  ex- 
periment in  its  favour,  I  could  not  be  insensible  to  the  obligation  to  co-operate 
as  far  as  I  could  in  averting  the  calamity.  With  this  view  I  acceded  to  the 
desire  of  my  fellow  Citizens  of  the  County  that  I  should  be  one  of  its  repre- 
sentatives in  the  Legislature,  hoping  that  I  might  there  best  contribute  to  in- 
culcate the  critical  posture  to  which  the  Revolutionary  cause  was  reduced, 
and  the  merit  of  a  leading  agency  of  the  State  in  bringing  about  a  rescue  of 
the  Union,  and  the  blessings  of  liberty  staked  on  it,  from  an  impending 
catastrophe. 

It  required  but  little  time  after  taking  my  seat  in  the  House  of  Delegates  in 
May  1784,  to  discover  that  however  favorable  the  general  disposition  of  the 
State  might  be  towards  the  Confederacy  the  Legislature  retained  the  aversion 
of  its  predecessors  to  transfers  of  power  from  the  State  to  the  Gov',  of  the 
Union ;  notwithstanding  the  urgent  demands  of  the  Federal  Treasury ;  the 
glaring  inadequacy  of  the  authorized  mode  of  supplying  it,  the  rapid  growth 
of  anarchy  in  the  Fed1.  System,  and  the  animosity  kindled  among  the  States 
by  their  conflicting  regulations.1 

It  is  evident  to  us  of  the  present  day,  from  an  inspection  of  his  writings 
and  from  his  leadership  in  the  Constitutional  Convention,  that  James  Madi- 
son was  the  fittest  by  study  and  experience  to  propose  the  basis  of  a  Consti- 
tution for  the  more  perfect  union,  and  his  contemporaries,  without  the  means 
of  knowledge  at  our  disposal,  so  considered  him.  One  of  his  colleagues  in 
the  Federal  Convention,  writing  of  him,  says : 

Mr.  Maddison  is  a  character  who  has  long  been  in  public  life ;  and  what 
is  very  remarkable  every  Person  seems  to  acknowledge  his  greatness.  He 
blends  together  the  profound  politician,  with  the  Scholar.  In  the  manage- 
ment of  every  great  question  he  evidently  took  the  lead  in  the  Convention, 
and  tho'  he  cannot  be  called  an  Orator,  he  is  a  most  agreeable,  eloquent,  and 
convincing  Speaker.  From  a  spirit  of  industry  and  application  which  he 
possesses  in  a  most  eminent  degree,  he  always  comes  forward  the  best  in- 
formed Man  of  any  point  in  debate.  The  affairs  of  the  United  States,  he 
perhaps,  has  the  most  correct  knowledge  of,  of  any  Man  in  the  Union.  He 
has  been  twice  a  Member  of  Congress,  and  was  always  thought  one  of  the 
ablest  Members  that  ever  sat  in  that  Council.2 

It  was  not  by  chance  that  Mr.  Madison  made  this  impression  upon  his 
fellow  delegate,  who  in  this  matter  spoke  for  his  contemporaries.  He  had 
represented  his  State  in  the  Continental  Congress  and  was  aware  of  the 
defects  of  the  Confederation  from  actual  experience  in  that  body.  He  was 
familiar  with  every  detail  of  the  Articles  of  Confederation,  and  as  a  prep- 
aration for  his  work  in  the  Convention  he  had  set  forth  in  connected  form 
the  defects  of  the  Confederation  in  a  memorandum,   and  he  had  likewise 

1  The  Writings  of  James  Madison,  Gaillard  Hunt  ed.,  Vol.  ii,  pp.  396-7. 

2  Notes  of  Major  William  Pierce  on  the  Federal  Convention  of  1787,  American  Historical 
Review,  Vol.  iii,  p.  331. 


A    CONFEDERATION    OF    SOVEREIGN    STATES  49 

embodied  in  another  memorandum  the  defects  of  the  known  instances  of 
confederations,  in  so  far  as  they  could  be  gathered  from  historical  records 
then  at  his  disposal.1  He  arranged  the  defects  of  the  Confederation  under 
eleven  headings  and  accompanied  each  with  apt  illustrations.2  Of  this  im- 
portant document,  which  is  unfortunately  too  long  to  be  quoted  in  its  entirety, 
as  it  deserves  to  be,  the  following  is  a  brief  analysis : 

1.  Failure  of  the  States  to  comply  with  the  Constitutional  requisitions. 
This  defect  Mr.  Madison  considered  to  be  so  obvious  as  to  require  neither 

illustration  nor  argument.  It  resulted,  he  said,  "  so  naturally  from  the  num- 
ber and  independent  authority  of  the  States,  and  has  been  so  uniformly  exem- 
plified in  every  similar  Confederacy,  that  it  may  be  considered  as  not  less 
radically  and  permanently  inherent  in,  than  it  is  fatal  to  the  object  of,  the 
present  system." 

2.  Encroachments  by  the  States  on  the  federal  authority. 

As  examples  of  this  defect  he  cites  the  wars  and  treaties  of  Georgia  with 
the  Indians,  the  compacts  between  Virginia  and  Maryland  and  between  Penn- 
sylvania and  New  Jersey,  the  troops  raised  and  kept  up  by  Massachusetts 
without  the  consent  of  the  Confederation,  as  required  by  the  sixth  of  the 
articles. 

3.  Violations  of  the  law  of  nations  and  of  treaties. 

Under  this  heading  he  said  that  "  not  a  year  has  passed  without  instances 
of  them  in  some  one  or  other  of  the  States,"  and  as  examples  he  cites  the 
Treaty  of  Peace  with  Great  Britain,  the  treaty  with  France,  the  treaty  with 
Holland,  each  one  of  which  had  been  violated,  and  although  these  nations  had 
been  forebearing,  or,  as  Madison  said,  "  have  not  been  rigorous  in  animad- 
verting on  us,"  indulgence  was  not  always  to  be  expected  in  the  future. 

4.  Trespasses  of  the  States  on  the  rights  of  each  other. 

Under  this  caption  Mr.  Madison  has  a  somewhat  imposing  and  alarming 
list,  citing  specifically  the  law  of  his  own  State  restricting  foreign  vessels  to 
certain  ports,  and  the  laws  of  Maryland  and  New  York  in  favor  of  vessels  of 
their  own  citizens.  Among  the  additional  examples  he  mentions  are  the  issue 
of  paper  money,  making  property  a  legal  tender,  acts  of  the  debtor  State  in 
favor  of  debtors,  affecting  not  only  citizens  of  the  other  States  but  citizens 
or  subjects  of  foreign  nations,  and  finally  the  practice  of  many  States  in 
violating  the  spirit  of  the  Articles  of  Confederation  by  putting  the  goods  and 
products  of  the  members  of  the  Union  upon  the  same  footing  with  those  of 
foreign  countries. 

5.  Want  of  concert  in  matters  where  common  interest  requires  it. 

1  Writings  of  Madison,  Hunt  ed.,  Vol.  ii,  pp.  369-390.  See  also  memorandum  contained 
in  Letters  and  Other  Writings  of  James  Madison,  pub.  by  order  of  Congress,  1865,  Vol.  i,  pp. 
389-398. 

2  Ibid.,  pp.  361-369.  Also  see  pp.  391-412  for  sketch  on  the  origin  of  the  Constitutional 
Conventioa 


50  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

To  this  defect  Air.  Madison  attributes  the  deplorable  state  of  commerce 
throughout  the  States,  a  weakness  also  affecting  the  national  dignity,  inter- 
est and  revenue.  To  this  clause  he  also  traces  inferior  but  still  important 
defects,  such  as  the  want  of  uniformity  in  laws  concerning  naturalization  and 
literary  property,  the  lack  of  provision  for  national  seminaries,  for  grants  of 
incorporation  for  national  purposes,  for  canals  and  other  works  of  general 
utility. 

6.  Want  of  guaranty  to  the  States  of  their  Constitutions  and  laws  against 
internal  violence. 

The  hands  of  the  Confederation  were,  he  says,  tied  in  this  matter,  because 
the  Articles  are  silent  as  to  it,  and  a  very  distressing  example  of  this  is  men- 
tioned in  his  correspondence,  that  of  Shays'  rebellion  in  Massachusetts  in  1787, 
which  also  produced  a  profound  impression  upon  contemporary  opinion. 

7.  Want  of  sanction  to  the  laws,  and  of  coercion  in  the  Government  of  the 
Confederacy. 

Mr.  Madison  considered  a  sanction  as  essential  to  the  idea  of  law  as 
coercion  is  to  that  of  government.  This  defect  of  the  Confederation  was 
due  to  the  fact  that  the  Articles  did  not  form  a  "  Political  Constitution,"  but 
were,  as  he  says,  "  nothing  more  than  a  treaty  of  amity,  of  commerce,  and  of 
alliance  between  independent  and  Sovereign  States."  Therefore,  there  was 
no  central  government  and  there  was  a  lack  of  power  in  the  Congress  to  compel 
obedience  to  law;  and  in  Madison's  opinion  coercion  in  government  was  as 
essential  as  the  sanction  of  law.  The  experience  of  the  Congress  had,  he 
said,  demonstrated  "  that  a  unanimous  and  punctual  obedience  of  13  inde- 
pendent bodies  to  the  acts  of  the  federal  Government  ought  not  to  be  calcu- 
lated on,"  and  without  the  supremacy  of  the  acts  of  the  Union,  interpreted 
and  applied  in  the  sense  in  which  they  were  meant  by  the  Congress,  it  was 
impossible  to  better  conditions  or  indeed  to  preserve  the  Union. 

8.  Want  of  ratification  by  the  people  of  the  Articles  of  Confederation. 
Mr.  Madison  attached  very  great  importance  to  this  defect,  as  appears 

from  his  correspondence  and  also  from  his  attitude  in  the  Convention,  recog- 
nizing clearly  that  a  ratification  by  the  people  within  a  State  would  make  it 
the  law  of  the  people,  as  well  as  of  the  State,  and  that  an  act  or  law  ratified 
by  the  people  would  give  the  government  a  right  to  proceed  directly  against 
the  person  violating  the  act  or  law,  instead  of  appealing  to  the  State  to  correct 
the  violation. 

These  consequences  he  considered  as  characteristic  of  what  he  called  a 
political  constitution,  whereas  in  the  Confederation,  which  he  properly  re- 
garded as  a  league  of  sovereign  powers  and  not  as  a  political  constitution, 
the  Union  could  only  act  upon  the  State  and  through  the  State  upon  its 
citizens.  In  this  connection,  he  also  pointed  out  the  danger  to  the  Union  of 
the  violation  of  the  compact  by  a  State,  which  would  give  to  the  other  mem- 


A    CONFEDERATION    OF    SOVEREIGN    STATES  51 

bers  of  the  diplomatic  union  the  right  to  withdraw  and  thus  to  destroy  the 
Confederation. 

9.  Multiplicity  of  laws  in  the  several  States. 

This  is  a  defect  in  a  nation  or  in  a  State,  which  apparently  can  not  be 
corrected  without  a  change  of  mind,  heart  and  conduct  on  the  part  of  members 
of  legislatures.  If  Mr.  Madison  expected  far  less  under  a  "  Political  Con- 
stitution "  his  reputation  as  a  prophet  would  be  shattered,  for  the  laws  of  the 
Congress  under  the  Constitution  and  of  the  different  States  since  the  date  of 
its  adoption  are  so  constantly  amended  that  we  do  not  know  whether  our 
knowledge,  so  painfully  acquired  during  a  recess  of  these  lawmaking  bodies, 
has  been  repealed  overnight  by  their  action  when  in  session.  His  comments 
on  this  point  are,  however,  so  interesting  that  they  are  quoted  rather  than 
paraphrased.     Thus  he  says : 

Among  the  evils  then  of  our  situation,  may  well  be  ranked  the  multiplicity 
of  laws  from  which  no  State  is  exempt.  As  far  as  laws  are  necessary  to 
mark  with  precision  the  duties  of  those  who  are  to  obey  them,  and  to  take 
from  those  who  are  to  administer  them  a  discretion  which  might  be  abused, 
their  number  is  the  price  of  liberty.  As  far  as  laws  exceed  this  limit  they  are 
a  nuisance ;  a  nuisance  of  the  most  pestilent  kind.  Try  the  Codes  of  the  sev- 
eral States  by  this  test,  and  what  a  luxuriancy  of  legislation  do  they  present. 
The  short  period  of  independency  has  filled  as  many  pages  as  the  century 
which  preceded  it.  Every  year,  almost  every  session,  adds  a  new  volume. 
This  may  be  the  effect  in  part,  but  it  can  only  be  in  part,  of  the  situation  in 
which  the  revolution  has  placed  us.  A  review  of  the  several  Codes  will  shew 
that  every  necessary  and  useful  part  of  the  least  voluminous  of  them  might 
be  compressed  into  one-tenth  of  the  compass,  and  at  the  same  time  be  ren- 
dered ten-fold  as  perspicuous. 

10.  Mutability  of  the  laws  of  the  States. 

Mr.  Madison  was  aware  that  his  previous  heading  practically  included  this 
one.  Nevertheless  he  stated  it  for  the  sake  of  completeness  and  as  his  obser- 
vations upon  it  have  not  lost  their  point  they  are  quoted  to  give  full  effect  to 
the  previous  objections.     Thus  he  says: 

This  evil  is  intimately  connected  with  the  former,  yet  deserves  a  distinct 
notice,  as  it  emphatically  denotes  a  vicious  legislation.  We  daily  see  laws  re- 
pealed or  superseded  before  any  trial  can  have  been  made  of  their  merits,  and 
even  before  a  knowledge  of  them  can  have  reached  the  remoter  districts 
within  which  they  were  to  operate.  In  the  regulations  of  trade,  this  instabil- 
ity becomes  a  snare  not  only  to  our  citizens,  but  to  foreigners  also. 

11.  Injustice  of  the  laws  of  the  States. 

This  subject  is  likewise  connected  with  the  previous  ones,  because  it  is 
not  merely  the  multiplicity  of  the  laws  and  the  numerous  changes  involved 
to  which  he  objects.  They  were  even  at  times  unjust,  in  addition  to  other 
vices,  and  he  was  especially  anxious  to  find  the  reasons  for  the  injustice  of 
the  laws  of  the  different  States,  in  the  belief  that  when  the  reasons  had  been 


52 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Personal 
Interests 


Sovereignty 


disclosed  the  remedy  would  follow  close  upon  their  footsteps.  The  causes  of 
the  evils  he  held  to  be,  first,  in  the  representative  bodies,  and  second,  in  the 
people  themselves ;  in  the  representative  bodies  because  representative  appoint- 
ments are,  he  says,  sought  from  three  motives :  "  1.  Ambition.  2.  Personal 
interest.  3.  Public  good."  And  he  felt  obliged  to  state  that  "  Unhappily, 
the  two  first  are  proved  by  experience  to  be  most  prevalent." 

But  he  regarded,  and  properly,  the  people  to  be  more  at  fault,  because  if 
they  wanted  different  representatives  they  could  have  them,  and  if  they  insisted 
upon  just  laws  their  representatives  would  frame  them.  He  finds  the  chief 
fault  to  be  in  the  fact  that  civilized  societies  are  divided  into  different  interests 
and  factions,  "  creditors  or  debtors,  rich  or  poor,  husbandmen,  merchants,  or 
manufacturers,  members  of  different  religious  sects,  followers  of  different 
political  leaders,  inhabitants  of  different  districts,  owners  of  different  kinds 
of  property,  &c,  &c."  He  mentions  three  correctives,  but  finds  them  to  be 
wanting  whenever  the  interest  of  the  individual  seems  to  suggest  their  viola- 
tion. They  are:  "  1.  A  prudent  regard  to  their  own  good,  as  involved  in 
the  general  and  permanent  good  of  the  community."  As  a  result  of  expe- 
rience Mr.  Madison  holds  that  this  consideration  lacks  decisive  weight,  and 
he  includes  nations  as  well  as  individuals,  saying,  "  It  is  too  often  forgotten, 
by  nations  as  well  as  by  individuals,  that  honesty  is  the  best  policy."  The 
second  is  a  respect  for  character,  and  here  again  he  finds  that  this  corrective 
does  not  prevent  injustice,  because,  as  he  says,  "  In  a  multitude  its  efficacy  is 
diminished  in  proportion  to  the  number  which  is  to  share  the  praise  or  the 
blame,"  and  even  if  it  prevails  within  a  society  it  is  doubtful  if  it  crosses  the 
frontier  and  extends  into  adjoining  provinces  or  States,  inasmuch  as  actions 
are  constantly  committed  within  one  State  affecting  strangers  beyond  its  con- 
fines. The  third  is  religion,  which  he  mentions  only  to  reject,  saying,  "  The 
conduct  of  every  popular  assembly  acting  on  oath,  the  strongest  of  religious 
ties,  proves  that  individuals  join  without  remorse  in  acts,  against  which  their 
consciences  would  revolt  if  proposed  to  them  under  the  like  sanction,  sep- 
arately in  their  closets." 

As  the  result  of  his  careful  and  prolonged  study  of  this  subject,  he  finds 
that  "  The  great  desideratum  in  Government  is  such  a  modification  of  the 
sovereignty  as  will  render  it  sufficiently  neutral  between  the  different  interests 
and  factions  to  controul  one  part  of  the  society  from  invading  the  rights  of 
another,  and,  at  the  same  time,  sufficiently  controuled  itself  from  setting  up 
an  interest  adverse  to  that  of  the  whole  society,"  and  he  concludes  by  con- 
sidering the  different  forms  of  government  and  the  extent  to  which  they  may 
be  counted  upon  to  meet  his  requirements.     Thus  he  says : 

In  absolute  Monarchies  the  prince  is  sufficiently  neutral  towards  his  sub- 
jects, but  frequently  sacrifices  their  happiness  to  his  ambition  or  his  avarice. 


A    CONFEDERATION    OF   SOVEREIGN    STATES  53 

In  small  Republics,  the  sovereign  will  is  sufficiently  controuled  from  such  a 
sacrifice  of  the  entire  Society,  but  is  not  sufficiently  neutral  towards  the  parts 
composing  it.  As  a  limited  monarchy  tempers  the  evils  of  an  absolute  one; 
so  an  extensive  Republic  meliorates  the  administration  of  a  small  Republic. 


The  form  of  government  which  he  himself  felt  necessary  was  later  laid   Madison's 

View  of 

Public 

Officers 


before  the  Federal  Convention  by  Mr.  Randolph  in  what  has  been  called  the  Pi',bT° 


Virginia  plan,  which  not  only  bears  the  impress  of  his  experienced  and 
scholarly  mind  but  is  in  his  own  handwriting  as  well.  He  was  not,  however, 
unconscious  of  the  fact  that  something  was  needed  above  and  beyond  the  form 
of  government,  and  it  is  the  conscious  expression  of  this  fact  that  gives  point 
and  value  to  his  observations.  Governors  of  the  States  must  be  worthy  of 
the  trust,  and  with  this  he  aptly  closes  his  observations : 

An  auxiliary  desideratum  for  the  melioration  of  the  Republican  form  is 
such  a  process  of  elections  as  will  most  certainly  extract  from  the  mass  of 
the  society  the  purest  and  noblest  characters  which  it  contains ;  such  as  will 
at  once  feel  most  strongly  the  proper  motives  to  pursue  the  end  of  their  ap- 
pointment, and  be  most  capable  to  devise  the  proper  means  of  attaining  it. 

Before  the  ratification  of  the  Articles  of  Confederation  by  the  last  of  the  Yj*^ 
thirteen  States  on  March  1,  1781,  a  movement  had  begun  to  amend  the  Articles 
in  order  to  make  them  more  adequate  for  governmental  purposes,  which,  pro- 
longed through  a  series  of  years,  led  to  the  call  of  the  Constitutional  Convention 
which  met  in  Philadelphia  in  the  summer  of  1787,  an  assembly  which  replaced 
the  Articles  by  a  newer  and  more  perfect  instrument  of  government  called  the 
Constitution,  under  which  the  United  States  on  the  one  hand  and  the  States  on 
the  other  have  waxed  great  and  have  prospered.  The  Congress  recognized 
that  the  work  of  its  hands  was  imperfect,  but  its  members  felt  that  the  Articles 
of  Confederation  embodied  all  of  the  concessions  from  the  States  which  they 
could  obtain  at  that  time,  and  they  did  not  recognize,  perhaps,  before  expe- 
riencing them,  the  defects  of  that  instrument  of  government  which  is  known 
as  the  Articles  of  Confederation. 

Jonathan  Elliot,  to  whom  we  are  under  the  deepest  obligation  for  his 
Debates  in  the  State  Conventions  on  the  adoption  of  the  Federal  Constitution, 
and  the  debates  in  the  Convention  itself,  entitled  the  section  devoted  to  the 
period  between  the  ratification  of  the  Articles  and  the  call  of  the  Convention, 
"  Proceedings  which  led  to  the  Adoption  of  the  Constitution  of  the  United 
States."  x  And  in  this  section  he  enumerates  four  proposals,  which  failed  —  Four 
but  they  may  be  termed  happy  failures,  for  it  is  because  of  them  that  the  call  thTtFaiifd 
went  out  for  a  convention  which  framed  the  more  perfect  Union.  These  four 
are : 

First,  the  proposal  to  amend  the  eighth  of  the  Articles  of  Confederation,  in 

1  Jonathan  Elliot,  The  Debates  in  the  Several  State  Conventions  on  the  Adoption  of  the 
Federal  Constitution,  1836,  Vol.  i.  pp.  92-120. 


54  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

order  to  base  the  quotas  upon  population  which  the  States  should  contribute 
to  the  government  rather  than  upon  the  value  of  the  realty  in  each  of  the 
States ; 

Second,  a  proposal  to  authorize  the  Congress  to  levy  a  duty  of  five  per 
cent,  ad  valorem  upon  all  goods,  wares,  and  merchandise  of  foreign  growth 
and  manufacture  imported  into  the  United  States  after  the  1st  day  of  May, 
1781,  and  to  authorize  the  United  States  to  levy  a  like  duty  of  five  per  cent, 
on  all  prizes  and  prize  goods  condemned  in  the  court  of  admiralty  of  any  of 
the  States,  in  order  that  the  revenues  arising  therefrom  should  be  used  to  dis- 
charge the  principal  and  interest  of  the  debts  contracted  or  which  should  be 
contracted  on  the  faith  of  the  United  States  during  the  "  present  war  " ; 

Third,  a  proposal  to  invest  the  United  States  with  the  power  to  levy  duties 
upon  certain  specified  goods  imported  into  the  United  States  from  any  foreign 
port,  island  or  plantation  during  a  period  of  twenty-five  years,  to  raise  from 
the  States  for  a  period  of  twenty-five  years  a  revenue  of  $1,500,000  annually 
to  extinguish  the  debt  contracted  on  the  faith  of  the  United  States  according 
to  quotas  specified  in  the  resolution ; 

Fourth,  to  amend  the  Articles  of  Confederation  by  investing  the  United 
States  in  Congress  assembled,  for  a  period  of  fifteen  years,  with  the  power  to 
forbid  the  States  to  import  or  to  export  goods  in  vessels  belonging  to  nations 
with  which  the  United  States  did  not  have  treaties  of  commerce,  and  to  em- 
power Congress,  for  a  like  period  of  fifteen  years,  to  forbid  the  subjects  of 
foreign  States  residing  within  the  United  States  to  export  goods,  wares  or 
merchandise  unless  authorized  so  to  do  by  treaty, 
f roubles0  Finance  and  commerce  were  the  rocks  upon  which  the  little  ship  of  state 

well  nigh  foundered,  but  the  failure  of  the  States  to  respond  to  the  recom- 
mendations, indeed  we  might  almost  say  the  prayers,  of  the  Congress  led  to 
private  initiative,  in  the  hope  that  it  might  succeed  where  public  initiative  had 
failed.  The  trouble,  as  we  see  today,  was  one  that  might  be  remedied  with- 
out affecting  the  rights  of  the  States,  by  investing  the  Congress,  through  its 
own  agents,  with  the  power  of  collecting  revenue  at  the  source,  in  accordance 
with  the  consent  and  the  authorization  of  the  States.  In  this  way  the  general 
government  would  have  been  able  to  sue  and  to  collect  the  revenue  from  the 
individual,  whereas  the  government  could  not,  under  the  law  of  nations,  sue 
a  sovereign,  free  and  independent  State  to  collect  the  quotas  fixed  by  the  Con- 
gress for  the  States  in  accordance  with  the  Articles  of  Confederation;  and  the 
States  were  unwilling  to  invest  the  United  States  in  Congress  assembled  with 
the  right  to  sue  the  State,  and  to  compel  by  force,  if  necessary,  compliance 
with  its  obligations.  The  framers  of  the  Confederation  did  not  see,  because 
they  lacked  experience,  that  a  provision  of  this  kind  would  not  only  provide 
the  revenue  needed  by  the  general  government,  but  would  obviate  quarrels  and 


A    CONFEDERATION    OF    SOVEREIGN    STATES  55 

ill  feeling  between  the  States  and  their  citizens,  as  the  State  would  not  need, 
for  the  purpose  of  the  Union,  to  thrust  its  hand  into  the  pockets  of  its  citizens. 

This  matter  has  never  been  put  more  clearly  than  by  Alexander  Hamilton 
in  his  speech  in  the  New  York  Convention  advocating  the  ratification  of  the 
Constitution.  "  It  has  been  observed,"  he  said,  that  "  to  coerce  the  states  is  ofTtTtes 
one  of  the  maddest  projects  that  was  ever  devised."  And  he  asked,  "  can  we 
believe  that  one  state  will  ever  suffer  itself  to  be  used  as  an  instrument  of 
coercion?"  In  his  opinion,  and  Hamilton  was  no  advocate  of  state  rights, 
it  could  not  be  done,  and  it  should  not  be  tried.  "  The  thing  is  a  dream,"  he 
said,  "  it  is  impossible."  On  the  theory  of  government  which  had  been  tried 
and  found  wanting,  he  added,  "  Then  we  are  brought  to  this  dilemma  —  either 
a  federal  standing  army  is  to  enforce  the  requisitions  or  the  federal  treasury 
is  left  without  supplies,  and  the  government  without  support."  What  was  to 
be  done,  or  as  he  expressed  it  in  the  language  of  debate :  "  What,  sir,  is  the 
cure  for  this  great  evil?"  This  question  he  answered,  in  such  a  way  as  to 
show  not  merely  the  nature  of  the  solution  but  the  solution  itself :  "  Nothing, 
but  to  enable  the  national  laws  to  operate  on  individuals,  in  the  same  manner 
as  those  of  the  states  do.     This  is  the  true  reasoning  upon  the  subject,  sir."  1 

But  to  return  to  the  role  of  private  initiative  in  the  creation  of  the  more 
perfect  Union.  The  situation  of  the  States  in  matters  of  commerce  was 
that  which  would  arise  between  sovereign,  free  and  independent  States  in 
which  there  was  not  a  customs  union,  such  as  the  German  States  were  wise 
enough  to  conclude  in  the  middle  of  the  19th  Century.  As  stated  by  a  keen- 
eyed  observer  of  the  period:  "The  states,"  Mr.  Madison  said,  "having  no 
convenient  ports  for  foreign  commerce,  were  subject  to  be  taxed  by  their 
neighbors,  thro'  whose  ports,  their  commerce  was  carried  on.  New  Jersey, 
placed  between  Phil"  &  N.  York,  was  likened  to  a  cask  tapped  at  both  ends; 
and  N.  Carolina,  between  Virga  &  S.  Carolina  to  a  patient  bleeding  at  both 
Arms."  2  The  Congress  foresaw  the  consequences  of  such  a  condition,  and 
had  already  laid  it  before  the  States,  but  without  avail,  in  the  following  impres- 
sive language : 

The  situation  of  commerce  at  this  time  claims  the  attention  of  the  several 
states,  and  few  objects  of  greater  importance  can  present  themselves  to  their 
notice.  The  fortune  of  every  citizen  is  interested  in  the  success  thereof ; 
for  it  is  the  constant  source  of  wealth  and  incentive  to  industry ;  and  the 
value  of  our  produce  and  our  land  must  ever  rise  or  fall  in  proportion  to  the 
prosperous  or  adverse  state  of  trade.3 

Private  initiative  supplied  the  remedy.     Maryland  and  Virginia  were  in-   j^*^ 
terested  in  the  navigation  of  Chesapeake  Bay  and  its  tributaries  and  they  had 
come  to  a  satisfactory  working  agreement  in  the  matter.     But  Pennsylvania 

i  Elliot.  Debates,  Vol.  ii,  pp.  232,  233. 

-  Writings  of  Madison,  Hunt  ed..  Vol.  ii,  p.  395. 

3  Elliot,  Debates,  Vol.  i,  p.  107. 


56  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

and  Delaware  were  likewise  interested  parties,  either  as  bordering  on  the  Bay 
and  its  tributaries  or  as  affected  by  their  regulation.  In  a  less  degree  all  the 
States  were  interested  in  as  far  as  they  were  affected,  whereas  the  adjoining 
States  were  primarily  concerned.  Hence,  it  occurred  to  Mr.  Madison  to  have 
Virginia  propose  a  meeting  of  delegates  of  the  States,  in  order  to  see  what 
could  be  done  or  what  could  be  proposed  to  better  conditions  in  that  matter 
of  trade  and  commerce.  Therefore,  on  January  21,  1786,  the  Virginia  legis- 
lature appointed  certain  persons,  among  whom  may  be  mentioned  Edmund 
Randolph,  James  Madison  and  George  Mason,  as  commissioners  to  "  meet 
such  commissioners  as  may  be  appointed  by  the  other  states  in  the  Union,  at  a 
time  and  place  to  be  agreed  on,  to  take  into  consideration  the  trade  of  the 
United  States;  to  examine  the  relative  situation  and  trade  of  the  said  States; 
to  consider  how  far  a  uniform  system  in  their  commercial  regulations  may  be 
necessary  to  their  common  interest  and  their  permanent  harmony;  and  to  re- 
port to  the  several  states  such  an  act  relative  to  this  great  object  as,  when 
unanimously  ratified  by  them,  will  enable  the  United  States  in  Congress  assem- 
bled effectually  to  provide  for  the  same;  that  the  said  commissioners  shall 
immediately  transmit  to  the  several  states  copies  of  the  preceding  resolution, 
with  a  circular  letter  requesting  their  concurrence  therein,  and  proposing  a 
time  and  place  for  the  meeting  aforesaid."  1 
Convention  In  response  to  this  invitation  —  for  which  there  was  no  authority  in  the 

at  Annapolis  ,  _ 

Articles  of  Confederation,  and  indeed  there  had  been  no  authorization  for  the 
action  of  Maryland  and  Virginia  in  regulating  their  interests  in  the  Chesa- 
peake and  its  tributaries  —  issued  by  the  State  of  Virginia,  nine  States  ap- 
pointed delegates  to  meet  at  Annapolis  on  the  first  Monday  in  September, 
1786.  When  the  day  came  delegates  had  arrived  only  from  the  five  States 
of  New  York,  New  Jersey,  Pennsylvania,  Delaware  and  Virginia;  but  among 
these  delegates  were  well  known  names  —  Alexander  Hamilton  and  Egbert 
Benson  of  New  York,  William  Patterson  of  New  Jersey,  John  Dickinson  of 
Delaware,  Edmund  Randolph  and  James  Madison  of  Virginia.  The  distin- 
guished veteran  and  colonial  statesman,  John  Dickinson,  was  elected  chairman 
of  the  Convention,  which  met  on  September  1 1,  1786,  but  in  the  absence  of  the 
other  States  the  members  present  wisely  limited  themselves  to  a  recommenda- 
tion drafted  by  Hamilton,  stating  it  to  be  "  their  unanimous  conviction,  that 
it  may  essentially  tend  to  advance  the  interests  of  the  Union,  if  the  states,  by 
whom  they  have  been  respectively  delegated,  would  themselves  concur,  and  use 
their  endeavors  to  procure  the  concurrence  of  the  other  states,  in  the  appoint- 
ment of  commissioners,  to  meet  at  Philadelphia  on  the  second  Monday  in 
Another  May  next  [1787],  to  take  into  consideration  the  situation  of  the  United  States, 

Convention  J 

Proposed  to  devise  such  further  provisions  as  shall  appear  to  them  necessary  to  render 

1  Elliot,  Debates,  Vol.  i,  pp.  115-6. 


A    CONFEDERATION    OF    SOVEREIGN    STATES  57 

the  Constitution  of  the  Federal  government  adequate  to  the  exigencies  of  the 
Union,  and  to  report  such  an  act  for  that  purpose  to  the  United  States  in 
Congress  assembled,  as,  when  agreed  to  by  them,  and  afterwards  confirmed 
by  the  legislatures  of  every  State,  will  effectually  provide  for  the  same."  x 

The  Convention  was  somewhat  embarrassed  in  the  matter  of  Congress,  as 
the  meeting  at  Annapolis  was  without  its  consent  and  therefore  unconstitu- 
tional. As,  however,  Congress  would  have  to  act  if  the  Articles  of  Confed- 
eration were  to  be  amended  "  in  order  to  render  the  Constitution  of  the  Federal 
government  adequate  to  the  exigencies  of  the  Union,"  it  would  be  necessary 
not  only  to  inform  the  Congress  but  to  have  it  take  appropriate  action,  in 
accordance  with  the  thirteenth  of  the  Articles  of  Confederation  which  pro- 
vided that  no  "  alteration  at  any  time  hereafter  be  made  in  any  of  them ;  unless 
such  alteration  be  agreed  to  in  the  Congress  of  the  United  States  and  be  after- 
ward confirmed  by  the  legislatures  of  every  state."  The  commissioners 
prepared  a  report  to  their  respective  governments,  and  dealt  with  the  delicate 
congressional  situation  in  the  following  concluding  paragraph: 

Though  your  commissioners  could  not  with  propriety  address  these  ob- 
servations and  sentiments  to  any  but  the  states  they  have  the  honor  to  repre- 
sent, they  have  nevertheless  concluded,  from  motives  of  respect,  to  transmit 
copies  of  this  report  to  the  United  States  in  Congress  assembled,  and  to  the 
executive  of  the  other  states.2 

Virginia  at  once  took  action,  agreeing  to  the  convention  to  be  held  at  ^°pfo"iionaI 
Philadelphia  for  the  purposes  specified  in  the  report,  and  appointed  commis- 
sioners or  delegates  to  meet  wkh  the  delegates  of  the  other  States  to  con- 
sider the  revision  of  the  Articles  of  Confederation.  New  Jersey,  Pennsyl- 
vania, North  Carolina,  Delaware,  and  Georgia  did  likewise;  whereupon  the 
Congress,  seeing  that  the  Convention  was  to  take  place,  and  not  unwilling  to 
make  a  recommendation  which  was  likely  to  be  followed,  as  well  as  to  aid 
in  securing  for  the  general  government  powers  which  it  had  repeatedly  but 
vainly  urged,  gave  its  approval  for  the  call  of  the  convention  in  the  follow- 
ing resolution,  adopted  February  21,  1787: 

Whereas  there  is  provision,  in  the  Articles  of  Confederation  and  Per- 
petual Union,  for  making  alterations  therein,  by  the  assent  of  a  Congress  of 
the  United  States,  and  of  the  legislatures  of  the  several  states ;  and  whereas 
experience  hath  evinced  that  there  are  defects  in  the  present  Confederation; 
as  a  mean  to  remedy  which,  several  of  the  states,  and  particularly  the  state  of 
New  York,  by  express  instructions  to  their  delegates  in  Congress,  have  sug- 
gested a  convention  for  the  purposes  expressed  in  the  following  resolution ; 
and  such  convention  appearing  to  be  the  most  probable  mean  of  establishing 
in  these  states  a  firm  national  government, — 

Resolved,  That,  in  the  opinion  of  Congress,  it  is  expedient  that,  on  the  sec- 
ond Monday  in  May  next,  a  convention  of  delegates,  who  shall  have  been  ap- 

!//>«.,  p.  118. 
2  Ibid. 


58  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

pointed  by  the  several  states,  be  held  at  Philadelphia,  for  the  sole  and  express 
purpose  of  revising  the  Articles  of  Confederation,  and  reporting  to  Congress 
and  the  several  legislatures  such  alterations  and  provisions  therein  as  shall, 
when  agreed  to  in  Congress,  and  confirmed  by  the  states,  render  the  federal 
Constitution  adequate  to  the  exigencies  of  government  and  the  preservation  of 
the  Union."  1 

Authorized  by  the  Congress,  there  was  no  reason  why  the  States  should 
hesitate,  and  with  the  exception  of  Rhode  Island  all  of  the  thirteen  States  then 
composing  the  Union  appointed  delegates.  They  did  not  reach  Philadelphia 
on  "  the  second  Monday  in  May  next."  It  was  not  until  the  25th  that  the 
delegates  of  seven  States  arrived.  New  Hampshire  did  not  appoint  its  dele- 
gates until  the  27th  of  June  because  of  a  lack  of  funds  necessary  to  their 
maintenance,  and  the  delegates  appointed  and  accepting  the  appointment  made 
their  appearance  only  late  in  July,  when  the  work  of  the  Convention  was  well 
along,  but  fortunately  in  time  to  share  in  some  of  its  most  important  proceed- 
ings. 
Union  of  It  may  be  disputed  whether  a  union  of  the  States  existed  in  law,  although 

States  it  may  have  existed  in  fact,  before  the  1st  day  of  March,   1781,  when  the 

Articles  of  Confederation  creating  a  perpetual  Union  were  ratified  by  the  last 
of  the  thirteen  States  upon  the  signature  of  the  Articles  by  the  delegates  of 
Maryland,  authorized  and  directed  so  to  do  by  that  State.  There  can  be  no 
doubt,  however,  that,  after  that  date  the  thirteen  American  States  formed  a 
Confederation  and  remained  confederated  until  the  dissolution  of  the  Con- 
federation by  the  adoption  of  the  Constitution  and  the  organization  of  the 
government  of  the  more  perfect  Union  thereunder  in  1789. 

The  question  of  the  relation  of  the  States  to  one  another  and  to  the  Con- 
federation established  by  the  Articles  has  been  the  subject  of  no  little  debate. 
Yet  there  seems  to  be  no  reasonable  doubt  on  this  head,  if  the  language  of  the 
Articles  means  what  it  says  and  if  the  decisions  of  the  Supreme  Court  of  the 
United  States  are  entitled  to  respect.  No  doubt  the  States  could  have  merged 
their  personality  in  the  Union  of  their  creation,  but  there  is  no  doubt  that 
they  did  not  do  so;  for,  after  stating  in  the  first  article  that  "  the  stile  of  this 
Confederacy  shall  be  '  the  United  States  of  America,'  "  the  very  next  article, 
and  the  first  in  which  the  relation  of  the  States  is  considered,  provides  that 
"  each  State  retains  its  sovereignty,  freedom,  and  independence,  and  every 
power,  jurisdiction  and  right  which  is  not  by  this  Confederation  expressly 
delegated  to  the  United  States  in  Congress  assembled." 

As  in  the  case  of  Rcspublica  v.  Sweers  ( 1  Dallas,  41),  decided  in  1779,  the 
Supreme  Court  of  Pennsylvania  considered  the  States  to  form  a  body  cor- 
porate from  the  moment  of  their  association,  so  in  Nathan  v.  Commonwealth 
of  Virginia  (1  Dallas,  77,  note),  decided  in  the  September  term  of   1781, 

i  Elliot,  Debates,  Vol.  i,  p.  120. 


A    CONFEDERATION    OF   SOVEREIGN    STATES  59 

within  a  few  months  of  the  final  ratification  of  the  Articles  of  Confederation 
on  March  1,  1781,  the  Supreme  Court  of  Pennsylvania  determined  that  the 
States  under  the  Articles  of  Confederation  were  sovereign,  free  and  independ- 
ent States  in  the  sense  of  international  law.  In  the  official  report  of  this  case 
it  is  stated  that 

A  foreign  attachment  was  issued  against  the  Commonwealth  of  Virginia, 
at  the  suit  of  Simon  Nathan ;  and  a  quantity  of  cloathing,  imported  from 
France,  belonging  to  that  state,  was  attached  in  Philadelphia.  The  delegates 
in  Congress  from  Virginia,  conceiving  this  a  violation  of  the  laws  of  nations, 
applied  to  the  supreme  executive  council  of  Pennsylvania,  by  whom  the 
sheriff  was  ordered  to  give  up  the  goods.  The  counsel  for  the  plaintiff,  find- 
ing that  the  sheriff  suppressed  the  writ,  and  made  no  return  of  his  proceed- 
ings, obtained,  September  20,  1781,  a  rule  that  the  sheriff  should  return  the 
writ,  unless  cause  was  shewn. 

They  contended,  that  the  sheriff  was  a  ministerial  officer ;  that  he  could 
not  dispute  the  authority  of  the  court  out  of  which  the  writ  issues,  but  was 
bound  to  execute  and  return  it  at  his  own  peril.  6  Co.  54.  That  those  cases 
in  England,  where  the  sheriff  was  not  compelled  to  return  writs  issued  against 
ambassadors  or  their  retinue,  depended  upon  the  stat.  7  Ann.,  c.  12,  which 
did  not  extend  to  this  state. 

The  Attorney-General,  on  the  part  of  the  sheriff,  and  by  direction  of 
the  supreme  executive  council,  shewed  cause,  and  prayed  that  the  rule  might 
be  discharged.  He  premised,  that  though  the  several  states  which  form  our 
federal  republic,  had,  by  the  confederation,  ceded  many  of  the  prerogatives  of 
sovereignty  to  the  United  States,  yet  these  voluntary  engagements  did  not 
injure  their  independence  on  each  other :  but  that  each  was  a  sovereign,  "  with 
every  power,  jurisdiction,  and  right,  not  expressly  given  up."  He  then  laid 
down  two  positions.  First :  that  every  kind  of  process,  issued  against  a  sov- 
ereign, is  a  violation  of  the  laws  of  nations ;  and  is  in  itself  null  and  void. 
Second :  that  a  sheriff  can  not  be  compelled  to  serve  or  return  a  void  writ. 

After  elaborate  argument  by  the  Attorney  General  and  counsel  for  plain- 
tiff in  support  of  their  respective  contentions,  "  the  Court,"  to  quote  the 
official  report,  "held  the  matter  some  days  under  advisement  —  and  at  their 
next  meeting  the  President  delivered  it  as  the  judgment  of  the  court. 

"  '  That  the  rule  made  upon  the  sheriff,  to  return  the  writ  issued  against 
the  commonwealth  of  Virginia,  at  the  suit  of  Simon  Nathan,  should  be  dis- 
charged.' " 

To  the  same  effect  are  the  opinions  of  Chief  Justice  Marshall  in  the  lead- 
ing case  of  Sturges  v.  Crowninshield  (4  Wheaton,  192),  decided  in  1819,  in 
which  that  eminent  jurist  said : 

It  must  be  recollected,  that  previous  to  the  formation  of  the  new  constitu- 
tion, we  were  divided  into  independent  states,  united  for  some  purposes,  but 
in  most  respects,  sovereign. 

And  in  the  leading  case  of  Gibbons  v.  Ogdcn  (9  Wheaton,  1,  187),  decided 
in  1824,  Chief  Justice  Marshall  again  said: 


60  THE   UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

As  preliminary  to  the  very  able  discussions  of  the  constitution,  which  we 
have  heard  from  the  bar,  and  as  having  some  influence  on  its  construction, 
reference  has  been  made  to  the  political  situation  of  these  states  anterior  to 
its  formation.  It  has  been  said,  that  they  were  sovereign,  were  completely 
independent,  and  were  connected  with  each  other  only  by  a  league.  This  is 
true. 

As  far,  therefore,  as  the  United  States  were  concerned,  they  were  inde- 
pendent from  July  4,  1776;  and  from  March  1,  1781,  they  formed  a  Confed- 
eration under  the  Articles  of  Confederation  and  Perpetual  Union.  As  far 
as  the  outer  world  was  concerned,  their  independence  of  Great  Britain  and 
membership  in  the  society  of  nations  was  recognized  by  treaties  with  France 
of  February  6,  1778,  with  the  Netherlands  of  October  8,  1782,  with  Sweden 
of  April  3,  1783,  and  with  Great  Britain  itself  of  September  3,  1783.  The 
Declaration  of  Independence  had  ceased  to  be  a  hope  or  a  promise;  it  had 
become  a  fact,  and  it  was  alike  the  task  and  the  test  of  the  Statesmen  of  the 
day  to  secure  that  form  of  government  which  to  them  and  their  successors 
should  seem  most  likely  to  effect  their  safety  and  happiness. 


IV 

EARLY  BACKGROUNDS  OF  THE  AMERICAN  CONSTI- 
TUTION—TRADING COMPANIES 

I  do  confess  I  did  ever  think  that  trading  in  companies  is  most  agreeable  to  the  English 
nature,  which  wanteth  that  same  general  vein  of  a  republic  which  runneth  in  the  Dutch 
and  serveth  to  them  instead  of  a  company.  (Sir  Francis  Bacon,  1616,  Letters  and  Life  of 
Francis  Bacon,  James  Shedding,  Editor,  Vol.  v,  i860,  p.  259.) 

Their  story  [The  Merchants  of  the  Staple]  is  the  story  of  the  beginning  of  English 
exports  on  any  considerable  scale,  and  of  a  system  which  was  devised  for  the  purpose. 
The  main  interest  of  the  system  lies  in  the  fact  that  the  Government  worked  through 
private  merchants,  and  used  them  as  machinery  for  State  purposes.  (Sir  C.  P.  Lucas, 
The   Beginnings   of  English   Overseas  Enterprise,   1917,  p.   55.) 

Henry  by  the  grace  of  God  King  of  England  and  France  and  Lord  of  Ireland,  to  all 
to  whom  these  present  letters  shall  come,  greeting. 

Know  ye  that,  .  .  . 

We,  .  .  . 

Do  will  and  grant,  by  the  tenor  of  these  presents,  to  the  said  merchants,  that  they  may 
freely  and  lawfully  assemble  and  meet  together  as  often  and  whensoever  they  please, 
in  some  convenient  and  fitting  place,  where  they  shall  think  good,  and  that  they  may 
choose  and  elect  among  themselves  certain  sufficient  and  fit  persons  for  their  governors 
in  those  parts  at  their  good  liking; 

And  furthermore  we  give  and  grant  to  the  said  Governors  which  are  in  such  sort 
to  be  chosen  by  the  aforesaid  merchants,  as  much  as  in  us  lieth,  special  power  and 
authority  to  rule  and  govern  all  and  singular  the  merchants  our  subjects  remaining  in 
those  parts  and  which  hereafter  shall  come  and  repair  to  those  parts,  either  by  themselves 
or  by  their  sufficient  deputies,  and  to  do  unto  them  and  every  one  of  them  in  their  causes  and 
quarrels  whatsoever,  which  are  sprung  up  or  shall  hereafter  spring  up  among  them  in  the 
parts  aforesaid,  full  and  speedy,  justice,  .  .  . 

And,  by  the  common  consent  of  the  aforesaid  merchants  our  subjects,  to  make  and 
establish  statutes,  ordinances  and  customs  as  shall  seem  expedient  in  that  behalf  for  the 
better  government  of  the  state  of  the  said  merchants  our  subjects, 

And  to  punish  reasonably  according  to  the  quantity  of  their  offence  in  that  behalf 
all  and  singular  the  merchants  our  subjects  which  shall  withstand,  resist  or  disobey  the 
aforesaid  governors  so  to  be  chosen,  or  their  deputies,  or  any  of  them,  or  any  of  the 
aforesaid   statutes,   ordinances   and   customs, 

Moreover  we  do  ratify,  confirm  and  approve,  and  as  ratified,  confirmed  and  approved 
we  command  firmly,  and  inviolably  then  to  be  observed  all  just  and  reasonable  statutes, 
ordinances  and  customs  which  shall  be  made  and  established  by  the  said  governors,  so  to  be 
chosen  in  the  form  aforesaid,  .  .  .  (Charter  Granted  by  Henry  IV  to  the  English  Merchants 
in  Holland,  Zeeland.  Brabant,  and  Flanders,  February  5th,  1406/7,  Sir  C.  P.  Lucas,  The 
Beginnings   of  English   Overseas  Enterprise,   1917,   pp.    184-186.) 

The  Adventurers  were  given  authority  to  meet  at  Calais  and  elect  a  governor,  and  "  four 
and  twenty  of  the  most  sad  discreet  and  honest  persons  of  divers  fellowships  of  the  said 
Merchants  Adventurers  "  to  be  his  assistants,  thirteen  to  form  a  quorum.  To  the  governor 
and  his  deputies,  with  the  twenty-four  assistants,  was  entrusted  the  power  of  making  laws 
for  the  fellowship.  (Charter  of  1505,  Sir  C.  P.  Lucas,  The  Beginnings  of  English  Overseas 
Enterprise,  1917,  p.  71.) 

The  first  embryo  of  the  chartered  company  is  no  less  important  and  no  less  interesting, 
in  its  bearing  upon  the  Empire  that  was  to  be,  than  the  growth  and  evolution  of  the 
system.  We  have  seen  of  what  sort  was  the  earliest  charter  to  the  Merchant  Adventurers. 
It  was  not  a  charter  to  give  a  trade  monopoly,  it  was  a  charter  to  grant  a  constitution, 
a  charter  to  enable  Englishmen  sojourning  in  foreign  parts  to  govern  themselves.  The 
preamble  sets  forth  the  mischief  that  has  occurred  and  is  likely  to  grow,  "  through  want 
of  good  and  discreet  rule  and  government,"  unless  the  king  intervenes  "  for  the  procuring 

61 


62  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

of  better  government."  With  this  end  in  view,  the  charter  prescribes  that  the  merchants 
"  may  freely  and  lawfully  assemble  and  meet  together,''  when  and  where  they  please,  to 
elect  governors  "in  those  parts  at  their  good  liking."  The  governors  are  empowered  to 
rule  and  administer  justice  to  all  English  merchants  resorting  to  those  parts,  to  adjust 
disputes  among  the  English  merchants  themselves,  and  disputes  between  English  merchants 
and  the  merchants  of  the  soil,  to  punish,  to  enforce,  "  and  by  the  common  consent  of  the 
aforesaid  merchants  our  subjects,  to  make  and  establish  statutes,  ordinances  and  customs 
as  shall  seem  expedient  in  that  behalf  for  the  better  government  of  the  state  of  the  said 
merchants  our  subjects."  .  .  .  The  one  and  only  object  of  the  charter  is  better  govern- 
ment, and  the  way  in  which  better  government  is  to  be  attained  is  by  granting  self- 
government.  The  king  knew  well,  and  the  merchants  knew  well,  that,  given  law  and 
order,  English  trade  would  prosper  without  government  assistance;  regulated  companies 
were  the  early  companies,  regulated  trade  is  what  they  stood  for,  as  opposed  to  promiscuous 
and  disorderly  traffic.  The  king  knew  well,  and  the  merchants  knew  well,  that  among 
Englishmen  the  golden  road  to  law  and  order  is  to  give  them  definite  authority  to  govern 
themselves,  to  choose  their  own  rulers  and  make  their  own  laws.  Exactly  two  hundred 
years  later,  in  1606,  the  continuous  history,  of  the  British  Empire  beyond  the  seas  began 
with  the  grant  of  a  royal  charter  to  the  Virginia  Company;  the  charter  which  was  given 
to  the  English  merchants  in  the  Low  Countries  for  their  better  government  in  1407  might 
almost  have  been  a  model  for  the  founding  of  English  colonies  in  America.  (Sir  C.  P. 
Lucas,   The   Beginnings   of   English   Overseas   Enterprise,   1917,  pp.    I49-I5I-) 

In  good  truth  his  company  was  a  plentiful  nursery,  for  the  forerunner  and  ancestor 
of  all  the  chartered  companies  was  the  fellowship  of  the  Merchant  Adventurers :  they 
made  the  first  experiments  and  took  the  first  risks :  "  one  day  still  being  a  schoolmaster 
unto  the  other."  they  gradually  evolved  the  machine  which  built  up  the  British  Empire. 
(Sir  C.  P.  Lucas,  The  Beginnings  of  English  Overseas  Enterprise,  1917,  p.  149.) 

The  Merchant  Adventurers  had  a  definite,  continuous,  w:orking  life,  in  one  phase  or 
another,  from  the  central  years  of  the  Middle  Ages  till  the  beginning  of  the  nineteenth 
century.  .  .  .  They  embodied,  to  quote  Carlyle's  words,  the  English  instinct  "  to  expand, 
if  it  be  possible,  some  old  habit  or  method,  already  found  fruitful,  into  new  growth  for 
the  new  need."  Born  of  a  guild,  they  became,  as  a  regulated  company,  a  guild  enlarged 
and  expanded  to  meet  wider  calls  than  those  of  a  particular  trade  in  an  English  city: 
they  embodied  "  the  development  of  national  commerce  along  lines  which  were  familiar 
in  municipal  life."  That  continuity,  which  has  been  an  outstanding  feature  of  English 
character  and  English  history,  was  at  once  illustrated  and  up  held  by  the  Merchant  Adven- 
turers. ... 

The  actual  beginnings  of  the  Overseas  Empire  of  Great  Britain  coincided  roughly  with 
the  beginnings  of  joint-stock  companies,  and  in  the  construction  of  the  Empire  joint  stock 
played  a  part  which  can  hardly  be  over-estimated.  (Sir  C.  P.  Lucas,  The  Beginnings  of 
English   Overseas  Enterprise,  1917,  pp.  141-143.) 

This  third  charter  of  Virginia  thus  erected  the  London  Trading  Company  into  a  body- 
politic,  democratic  in  its  organization,  with  powers  vested  in  a  chief  executive,  a  council, 
and  an  assembly,  having  full  authority  to  legislate  and  to  establish  a  form  of  government 
for  the  colony  confided  to  its  care. 

The  charter  just  described  possessed  all  the  essential  elements  of  a  written  constitu- 
tion. It  established  a  frame  of  government  and  distributed  executive,  judicial,  and  legis- 
lative functions.  It  was,  however,  merely  the  constitution  of  an  English  trading  company. 
(William  C.  Morey.  The  Genesis  of  a  Written  Constitution,  Annals  of  the  American  Academy 
of  Political  and  Social  Science,  1890-91,  Vol.  I,  p.  341.) 

As  we  trace  the  various  political  institutions  of  the  American  colonies  back  to  a  common 
source  we  find  that  they  were  in  the  first  instance  derived  from  certain  powers  delegated 
by  the  English  crown  and  embodied  in  charters  granted  to  trading  companies  or  pro- 
prietors. The  first  colonies,  whether  they  were  established  by  the  authority  of  their 
superiors,  or  whether  they  were  organized  by  their  own  independent  efforts,  acquired  a 
form  similar  to  that  of  the  trading  company.  In  its  most  primitive  and  typical  form  the 
colonial  government,  like  that  of  the  company,  consisted  of  a  governor,  a  deputy-governor, 
a  council  of  assistants,  and  a  general  assembly.  In  this  simple  political  body  there  was  at 
first  little  differentiation  of  functions.  The  most  important  business,  whether  legislative, 
judicial  or  administrative,  was  performed  by,  the  u-bcle  corporate  body,  assembled  in  a 
"  General  Court."  Matters  of  minor  importance  gradually  came  to  be  left  to  the  official 
part  of  the  body,  that  is,  the  governor,  the  deputy-governor,  and  the  assistants,  sitting  to- 
gether under  the  name  of  a  "  Court  of  Assistants,"  or  "  Council."    Taking  this  simple  and 


V 


EARLY   BACKGROUNDS    OF    THE   AMERICAN    CONSTITUTION  63 

almost  homogeneous  political  organism  as  a  starting  point,  it  will  not  be  difficult  for  us  to 
trace  the  growth  of  those  more  complex  institutions  which  characterized  the  later  colonies, 
and  which  became  embodied  in  the  first  State  constitutions.  (.William  C.  Morey,  The 
First  State  Constitutions,  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
1893,  Vol.  4,  pt.  1,  p.  204.) 

These  illustrations  are,  doubtless,  sufficient  to  show  that  the  form  of  government  which 
prevailed  in  the  southern  colonies  was  modelled  after  that  of  the  parent  colony  of  Virginia, 
which,  in  turn,  was  derived  from  the  form  of  government  established  by  royal  charter 
for  the  London  Trading  Company;  and  also  that  the  constitutions  of  the  southern  colonies 
came  into  being,  not  as  the  result  of  mere  custom,  but  as  the  product  of  statutory  legis- 
lation. 

As  we  turn  to  New  England  we  shall  see  that  the  typical  government  of  the  Northern 
colonies  was  not  patterned  after  that  of  a  trading  company.  It  was  itself  the  government 
of  a  trading  company.  In  the  case  of  Virginia,  the  company,  sent  out  the  colony  and  estab- 
lished a  government  over  it.  In  the  case  of  Massachusetts,  the  company  became  the  colony, 
and  brought  its  government  with  it.  (William  C.  Morey,  The  Genesis  of  a  Written  Con- 
stitution, Annals  of  the  American  Academy  of  Political  and  Social  Science,  1890-91,  Vol.  I, 
P.  548.) 


CHAPTER  IV 

EARLY   BACKGROUNDS    OF    THE   AMERICAN    CONSTITUTION THE   TRADING 

COMPANIES 

A  distinguished  statesman  has  observed  that  "  as  the  British  Constitu- 
tion is  the  most  subtile  organism  which  has  proceeded  from  .  .  .  progressive 
history,  so  the  American  Constitution  is  .  .  .  the  most  wonderful  work  ever 
struck  off  at  a  given  time  by  the  brain  and  purpose  of  man."  1  With  this 
commendation  of  the  Constitution  the  layman  is  likely  to  agree,  but  the  his- 
torian would  dissent,  unless  Mr.  Gladstone's  statement,  for  it  was  he  who 
made  the  remark,  is  to  be  construed  in  such  a  way  that  the  American  like 
the  British  constitution  be  looked  upon  as  the  most  subtile  organism  which 
has  proceeded  from  progressive  history.  For  the  fact  is  that,  with  the  Saxon 
conquest  of  England,  progressive  history  began  in  England,  and  with  the 
advent  of  the  first  English  settler  to  America,  progressive  history  began  in 
America,  and  the  culminations  were  the  unwritten  constitution  of  Great  Brit- 
ain on  the  one  hand  and  the  written  Constitution  of  the  United  States  on  the 
other.  If,  however,  the  constitution  of  Great  Britain  were  that  of  America, 
it  would  not  have  required  the  calling  of  a  convention  to  reduce  it  to  writing, 
and  although  it  was  undoubtedly  in  the  minds  of  those  who  framed  the  Amer- 
charters  ican  instrument  of  government,  it  was  not  the  British  constitution  of  1787 

but  the  British  constitution  as  expressed  in  colonial  charters  adjusted  to 
the  conditions  and  circumstances  of  the  new  environment  and  incorporated 
in  the  Constitutions  of  the  several  independent  states  of  America  (to  quote  the 
title  of  a  Congressional  publication  of  1781  2),  which  formed  the  firm  and 
sure  foundation  upon  which  the  new  structure  was  reared. 

It  is  common  knowledge  that  the  territories  which  formed  the  thirteen 
British  colonies,  and  ultimately  the  thirteen  original  States,  were  settled  under 
charters  granted  by  the  Crown ;  that  the  earliest  of  these  charters,  to  the  Lon- 
don and  New  England  Companies,  were  in  form  and  content  similar  to,  if 
not  identical  with  the  charters  granted  to  the  Trading  Companies  of  England, 
of  which  the  East  India  Company  is  the  most  famous  and  typical  example; 

i  William  E.  Gladstone,  Gleanings  of  Past  Years,  1843-78,  Vol.  i,  p.  212. 

2  The  Constitutions  of  the  several  independent  stales  of  America;  the  Declaration  of  in- 
dependence; the  Articles  of  confederation  between  the  said  states;  the  treaties  between  His 
Most  Christian  Majesty  and  the  United  States  of  America.  Published  by  order  of  Congress, 
Philadelphia,  1781. 

64 


Genesis 


EARLY   BACKGROUNDS   OF  THE   AMERICAN    CONSTITUTION  65 

that  the  form  of  government  developed  in  Virginia  under  its  charter  was 
followed  by  the  colonies  south  of  Mason  and  Dixon's  line;  and  that  the  form 
of  government  developed  in  Massachusetts  under  its  charter,  was  followed 
by  the  colonies  to  the  north  of  that  line.  It  is  important  to  dwell  upon  these 
facts,  because  they  show  how  naturally  the  framers  of  the  American  Con- 
stitution were  consciously  or  unconsciously  influenced  by  generations  of  colo- 
nial experience  and  practice  to  authorize  the  judicial  power  of  the  United 
States  to  declare  unconstitutional  those  acts  of  Congress  and  of  the  States 
forming  the  American  union  inconsistent  with  that  charter  which  we  call  the 
Constitution,  just  as  the  courts  of  the  mother-country  had  from  time  to  time  °f  Authority 
declared  null  and  void  legislation  on  the  part  of  the  colonies  in  excess  of  the  Queftiolis 
grants  contained  in  the  charters  creating  these  bodies  politic.  t/onamy""' 

In  the  first  volume  of  his  history  of  Massachusetts,  published  in  1764, 
Thomas  Hutchinson,  then  Chief  Justice  and  Lieutenant  Governor,  and  soon 
to  become  the  last  Royal  Governor  of  that  Commonwealth,  said,  in  speaking 
of  the  original  charter  of  the  colony  granted  on  March  4,  1628  : 

It  is  evident  from  the  charter  that  the  original  design  of  it  was  to  con- 
stitute a  corporation  in  England,  like  to  that  of  the  East-India  and  other  great 
companies,  with  powers  to  settle  plantations  within  the  limits  of  the  territory, 
under  such  forms  of  government  and  magistracy  as  should  be  fit  and  neces- 
sary.1 

More  recently  Mr.  George  Cawston,  a  specialist  in  such  matters  and  an  in- 
corporator of  the  British  South  African  Company,  has  said  : 

Most  of  the  colonial  possessions  of  this  Empire  were  in  the  first  place 
settled  through  the  agency  of  Chartered  Companies,  and  that  our  foreign 
trade  and  commerce  principally  originated  in  the  same  manner. 

In  his  interesting  and  instructive  volume  entitled  The  Early  Chartered  Com- 
panies, Mr.  Cawston  quotes  with  approval  in  the  preface  that  "  individuals 
cannot  extend  society  to  distant  places  without  forming  a  compact  amongst 
themselves,  and  obtaining  some  guarantee  for  its  being  observed,"  to  which  he 
adds  upon  his  own  authority : 

All  the  old  and  most  successful  British  colonies  in  America,  Virginia, 
Massachusetts,  Connecticut,  Rhode  Island,  Pennsylvania,  Maryland,  and 
Georgia,  which  formed  the  basis  of  that  most  wonderful  country,  the  United 
States  of  America,  were  founded  by  individuals  whose  public  spirit,  prudence, 
and  resolution  were  not  otherwise  assisted  by  the  Government  of  their  coun- 
try. The  charter  from  the  Crown  simply  erected  each  of  those  bodies  of 
individuals  into  a  corporation,  with  authority  required  for  accomplishing,  to 
use  the  words  of  several  of  these  charters,  "  their  generous  and  noble  pur- 
pose." - 

1  Thomas  Hutchinson,  The  History  of  the  Colony  of  Massachusets-Bay,  1764,  p.  13. 

2  George  Cawston  and  A.  H.  Keane,  The  Early  Chartered  Companies,  1896,  Preface,  pp. 
vii-viii. 


66 


THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Two 

Kinds  of 
Charters 


Corpora- 
tions 


In  Chapter  X  of  the  volume  to  which  reference  has  been  made,  a  careful 
and  readable  account  is  given  of  "  The  Virginia  and  New  England  Com- 
panies and  Provincial  Charters,"  in  the  course  of  which  attention  is  directed 
to  a  distinction  which  should  have  been  made  by  the  Crown  on  its  own  mo- 
tion, but  which  was  ultimately  wrung  from  the  mother  country  as  the  result 
of  a  bitter  experience: 

And  here  a  distinction  should  be  drawn  between  charters  granted  to  Eng- 
lish trading  companies,  which  on  the  whole  were  injurious,  and  charters 
granted  to  the  settlers  themselves,  which  were  often  beneficial  and  highly 
prized  as  legal  instruments  affording  protection  against  the  oppressive  or  un- 
constitutional measures  of  the  Crown  and  the  provincial  Governors.  In  gen- 
eral it  may  be  said  that  charters  of  this  second  category  should  alone  have 
been  granted,  or  at  least  the  others  should  have  been  withdrawn  as  soon  as 
the  colonists  felt  themselves  strong  enough  for  self-government.  Indeed, 
there  was  a  natural  tendency  in  this  direction,  and  the  control  of  the  trading 
associations  was  ultimately  everywhere  replaced  by  representative  assemblies. 

But  the  change  was  not  always  effected  without  considerable  friction, 
which  was  due  to  the  fact  that  the  Home  Government  was  slow  to  recognize 
the  true  relations  that  ought  to  have  prevailed  from  the  first  between  the  col- 
onies and  the  mother  country.  Those  colonies  were,  and  should  have  been 
regarded  as,  mere  extensions  of  England  beyond  the  seas,  as  Professor  Seeley 
has  clearly  shown  in  his  '  Expansion  of  England,'  and  had  this  patent  fact 
been  grasped  by  the  ruling  classes  in  the  eighteenth  century,  there  need,  per- 
haps, never  have  been  an  American  Revolution.1 

The  settlers  in  the  new  world  were  therefore  bound  to  be  familiar  with 
corporations,  the  characteristics  of  which  are  stated  by  Mr.  Stewart  Kyd,  a 
contemporary  of  the  framers  of  the  Constitution,  in  his  treatise  on  the  law  of 
corporations,  published  in  1793-4,  shortly  after  the  Constitution  of  the 
United  States  went  into  effect.  Mr.  Kyd,  dating  the  second  of  the  two  vol- 
umes from  the  Tower,  to  which  he  had  been  committed  on  a  charge  of  high 
treason  because  of  his  liberal  views  —  more  unfashionable  then  than  they 
are  today  —  thus  speaks  of  corporations : 

Among  the  institutions  of  almost  all  the  states  of  modern  Europe,  but 
among  none  more  than  those  of  England,  many  of  these  collective  bodies  of 
men,  under  the  names  of  bodies  politic,  bodies  corporate,  or  corporations, 
make  a  conspicuous  figure. 

At  their  first  introduction,  they  were  little  more  than  an  improvement  on 
the  communities  which  had  grown  up  imperceptibly,  without  any  positive 
institution ;  and,  for  a  considerable  period,  the  shade  which  separated  the 
one  from  the  other,  was  of  a  touch  so  delicate  as  to  require  the  most  minute 
attention,  and  the  most  discerning  eye,  to  distinguish. 

One  essential  characteristic  of  a  corporation  is  an  indefinite  duration,  by 
a  continued  accession  of  new  members  to  supply  the  place  of  those  who  are 
removed  by  death,  or  other  means,  which,  in  the  language  of  the  law,  is  called 
perpetual  succession:  .  .  . 


1  Cawston  and  Keane,   The  Early  Chartered  Companies,  pp.   198-9. 


EARLY    BACKGROUNDS   OF   THE   AMERICAN    CONSTITUTION  67 

It  is  another  characteristic  of  a  corporation,  that  it  is  capable  in  its  col- 
lective capacity  of  possessing  property,  and  transmitting  it  in  perpetual  suc- 
cession ;  .  .  . 

A  third  characteristic  of  a  corporation  is,  that  the  members  of  which  it  is 
composed,  are  subject  to  common  burthens;  .  .  . 

Another  characteristic  of  a  corporation  is,  that  it  may  sue  and  be  sued  in 
its  collective  capacity;  .  .  . 

And  after  stating  what  he  calls  the  essentials,  he  continues: 

A  corporation  then,  or  a  body  politic,  or  body  incorporate,  is  a  col- 
lection of  many  individuals,  united  into  one  body,  under  a  special  denomina- 
tion, having  perpetual  succession  under  an  artificial  form,  and  vested,  by  the 
policy  of  the  law,  with  the  capacity  of  acting,  in  several  respects,  as  an  in- 
dividual, particularly  of  taking  and  granting  property,  of  contracting  obliga- 
tions, and  of  suing  and  being  sued,  of  enjoying  privileges  and  immunities  in 
common,  and  of  exercising  a  variety  of  political  rights,  more  or  less  extensive, 
according  to  the  design  of  its  institution,  or  the  powers  conferred  upon  it, 
either  at  the  time  of  its  creation,  or  at  any  subsequent  period  of  its  exist- 
ence.1 

The  views  which  Mr.  Kyd  expressed  and  which  were  no  doubt  shared  by 
American  lawyers  of  his  day  were,  it  is  believed,  also  the  views  of  the  early 
settlers ;  and  these  views  were  based  upon  reported  cases  decided  by  English 
Judges  during  the  period  of  American  colonization.  Thus,  Sir  Henry  Hobart, 
"  a  most  learned,  prudent,  grave  and  religious  Judge,"  Attorney  General  from 
1606-13,  when  the  early  American  charters  were  granted,  and  Chief  Justice 
of  the  Court  of  Common  Pleas  from  the  latter  date  to  his  death  in  1625,  said 
in  the  case  of  N orris  v.  Stops  (Hobart,  211),  decided  in  1617: 

Now  I  am  of  opinion,  that  though  power  to  make  laws,  is  given  by  spe-  By-Laws 
cial  clause  in  all  incorporations,  yet  it  is  needless ;  for  I  hold  it  to  be  included 
by  law,  in  the  very  act  of  incorporating,  as  is  also  the  power  to  sue,  to  pur- 
chase, and  the  like.  For,  as  reason  is  given  to  the  natural  body  for  the  gov- 
erning of  it,  so  the  body  corporate  must  have  laws  as  a  politick  reason  to 
govern  it,  but  those  laws  must  ever  be  subject  to  the  general  law  of  the  realm 
as  subordinate  to  it.  And  therefore  though  there  be  no  proviso  for  that 
purpose,  the  law  supplies  it.  And  if  the  King  in  his  letters  patents  of  incor- 
poration do  make  ordinances  himself,  as  here  it  was  (as  aforesaid)  yet  they 
are  also  subject  to  the  same  rule  of  law. 

In  his  treatise  on  the  law  of  corporations  Mr.  Kyd  laid  it  down  that  "  not  only 
all  bye-laws  must  be  reasonable  and  consistent  with  the  general  principles  of 
the  law  of  the  land  "  for  which  Lord  Hobart's  authority  is  sufficient,  but  also 
"  their  reasonableness  and  legality  must  be  determined  by  the  Judges  in  the 
Superior  Courts  when  they  are  properly  before  them  " ;  for  which  statement 
the  learned  author  invoked  the  authority  of  the  Master  and  Company  of 
Framework-Knitters  v.  Green  (1  Lord  Raymond,  114),  decided  in  1695,  in 
which  it  was  said  by  the  Justices  that  "  members  of  corporations  are  not  bound 

1  Stewart  Kyd,  A  Treatise  on  The  Law  of  Corporations,  1793,  Vol.  i,  pp.  2,  3-4,  7,  10,  13. 


68  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

to  perform  by-laws  unless  they  are  reasonable,  and  the  reasonableness  of  them 
is  examinable  by  the  Judges." 

Finally,  for  present  purposes,  another  quotation  may  be  made  from  Kyd, 
as  it  is  material  to  the  subject  in  hand.     Thus  he  says: 

When  the  corporate  body  has  a  jurisdiction  over  certain  limits,  a  bye-law 
made  by  them  for  the  public  good,  and  whose  object  is  general  without  being 
limited  to  people  of  any  particular  description,  binds  every  body  coming  within 
the  limits  of  the  jurisdiction,  whether  strangers  or  members  of  the  corporate 
body  [Brownl.  and  Goulds,  179]  ;  for  every  man,  says  Holt,  who  comes  within 
the  limits  of  the  local  jurisdiction  of  a  corporation,  must  take  notice  of  their 
bye-laws  at  his  peril  [Per  Holt,  Skin.  35]. ' 

The  charter  granted  territory  within  which  the  trading  companies  should 
operate.  It  incorporated  certain  persons,  making  of  them  and  their  suc- 
cessors a  body  politic,  providing  for  a  governor  or  treasurer,  whom  we  today 
would  call  a  president  or  chairman ;  for  a  general  court,  council,  or  assistants, 
whom  we  today  would  call  a  board  of  directors;  and  a  more  numerous  body 
of  persons  declared  to  be  "  free  of  the  company,"  whom  we  would  today  call 
stockholders  in  a  company  engaged  in  a  common  venture  upon  a  joint  capital, 
but  who  would  be  tradesmen  in  a  trading  company,  where  each  member  acted 
individually,  not  jointly. 

The  nature  of  this  process,  its  development  and  its  consequences  are  thus 
stated  by  Messrs.  Cawston  and  Keane  in  their  work  on  The  Early  Chartered 
Companies: 

Develop.  The  trading  associations  that  were  now  springing  up  and  clamouring  for 

Trading  the  aegis  of  '  the  most  high,  mightie  and  magnificent  Empresse  Elizabeth ' 

Companies  were  constituted  on  two  distinct  principles.     First  in  the  natural  and  actual 

order  came  the  so-called  Regulated  Companies,  which  were  suitable  to  the 
first  efforts  of  the  nation  to  acquire  a  share  of  the  world's  trade,  but  destined 
eventually  to  be  superseded  by  the  far  more  powerful  and  efficient  Joint- 
Stock  Companies.  For  a  long  time  all  belonged  to  the  first  category,  and  even 
so  late  as  the  end  of  the  seventeenth  century  there  existed  in  England  only 
three  founded  on  the  joint-stock  principle,  although  these  three  —  the  East 
India,  the  Royal  African,  and  the  Hudson  Bay  —  were  perhaps  more  im- 
portant than  all  the  rest  put  together. 

In  the  '  regulated  '  companies,  at  that  time  chiefly  represented  by  the  Rus- 
sia, the  Turkey,  and  the  Eastland,  every  member  or  '  freeman '  traded 
solely  on  his  own  account,  subject  only  to  the  '  regulations  '  of  the  associa- 
tion. In  fact,  they  may  be  regarded  as  growing  out  of  the  trade  guilds,  modi- 
fied to  meet  the  requirements  of  their  more  enlarged  sphere  of  action.  In  the 
guilds  each  member  purchased  a  license  to  ply  his  trade  in  his  own  district  at 
his  personal  risk,  the  guild  itself  being  irresponsible  for  his  liabilities  in  case 
of  failure.  On  the  other  hand,  he  enjoyed  all  the  advantages  of  membership 
in  an  incorporated  trade,  which  could  not  be  exercised  by  outsiders,  even 
though  residents  in  the  district.  In  the  same  way  no  subject  of  the  Crown 
could  trade  in  any  foreign  '  district '  where  a  regulated  company  was  estab- 
lished without  first  acquiring  membership  by  the  payment  of  a  fee.2 

1  Kyd,  A  Treatise  on  the  Law  of  Corporations.  Vol.  ii,  p.  104. 

2  Cawston   and   Keane,   Early   Chartered   Companies,   pp.   9-10. 


EARLY    BACKGROUNDS   OF   THE    AMERICAN    CONSTITUTION  69 

It  is  thus  seen  that  in  the  very  elements  of  their  constitution  the  regu- 
lated companies  were  merely  a  development  of  the  local  guilds  adapted  for 
trading  purposes  beyond  the  seas.  The  reasons  which  caused  the  scales  to  tip 
on  the  side  of  the  joint-stock  companies  are  thus  stated  by  the  same  learned 
authors : 

Then  came  the  time  when,  with  the  growth  of  wealth  and  experience,  these 
pioneer  traders  in  foreign  lands  acquired  a  deeper  consciousness  of  their  latent 
powers,  a  greater  sense  of  their  higher  destinies,  and  especially  that  mutual 
confidence  in  each  other  which  was  needed  for  the  adoption  of  the  joint-stock 
principle.  As  in  the  regulated  associations  each  member  retained  his  per- 
sonal independence,  and  mainly  acted  on  his  own  account — 'traded  on  his 
own  bottom,'  as  was  the  phrase  —  so.in  the  '  joint '  concerns  the  individual 
was  largely  merged  in  the  corporate  body,  all  working  together  primarily  for 
the  common  good  rather  than  for  their  direct  personal  advantage.  .  .  . 

It  was  by  the  general  adoption  of  this  principle  that  the  great  chartered 
companies  acquired  their  enormous  expansion,  and  in  some  memorable  in- 
stances were  by  the  force  of  circumstances  gradually  transformed  from  mere 
commercial  associations  of  Adventurers  into  powerful  political  organizations.1 

On  December  31,  1600,  Queen  Elizabeth  granted  to  George,  Earl  of  Cum- 
berland, and  to  two  hundred  fifteen  Knights,  Aldermen,  and  Merchants  a 
charter  whose  terms  are  thus  stated  in  Anderson's  Origin  of  Commerce: 

That,  at  their  own  costs  and  charges, —  they  might  set  forth  one  or  more 
voyages  to  the  East  Indians,  in  the  country  and  parts  of  Asia  and  Africa, 
and  to  the  islands  thereabouts, —  divers  of  which  countries,  islands,  &c.  have 
long  sithence  been  discovered  by  others  of  our  subjects; — to  be  one  body 
politic  and  corporate,  by  the  name  of,  The  Governor  and  Company  of  Mer- 
chants of  London  trading  to  the  East  Indies;  —  to  have  succession  ;  —  to  pur- 
chase lands  (without  limitation;)  — to  have  one  Governor,  and  twenty-four 
persons,  to  be  elected  annually,  who  shall  be  called  Committees,  jointly  to 
have  the  direction  of  the  voyages,  the  provision  of  the  shipping  and  mer- 
chandize, also  the  sale  of  the  merchandize,  and  the  management  of  all  other 
things  belonging  to  the  said  Company. —  Sir  Thomas  Smith,  Alderman  of 
London,  was  to  be  the  first  Governor,  and  a  Deputy-Governor  to  be  elected  in 
a  General  Court ;  both  the  Governors  and  all  the  Committees  to  take  the  oath 
of  fidelity. —  As  also,  every  member  shall  take  an  oath,  before  being  admitted, 
to  traffic  as  a  freeman  of  this  Company. —  The  Company  .  .  .  may  .  .  . 
freely  and  solely  trade,  by  such  ways  and  passages  as  are  already  found  out, 
or  which  shall  hereafter  be  discovered  .  .  .  beyond  the  cape  of  Bona  Sper- 
anza  to  the  Streights  of  Magellan,  where  any  traffic  of  merchandize  may  be 
used  to  and  from  every  of  them,  in  such  manner  as  shall,  from  time  to  time, 
be  limited  and  agreed  on  at  any  public  assembly  or  general  court  of  the  Com- 
pany ;  any  statute,  usage,  diversity  of  religion  or  faith,  or  any  matter,  to  the 
contrary  notwithstanding;  so  as  it  be  not  to  any  country  already  possessed 
by  any  Christian  potentate  in  amity  with  her  Majesty,  who  shall  declare  the 
same  to  be  against  his  or  their  good  liking. —  E'ther  the  Governor  or  Deputy 
Governor  must  always  be  one  in  general  assemblies,  when  they  may  make 
all  reasonable  laws,  constitutions,  &c.  agreeable  to  the  laws  of  England,  for 

1  Cawston  and  Keane,  Early  Chartered  Companies,  pp.  11-12,  13. 


70  THE  united  states:  a  study  in  international  organization 

their  good  government,  by  plurality  of  voices,  and  may  punish,  by  fines  and 
imprisonment,  the  offenders  against  their  laws  .  .  .  None  of  the  Queen's 
subjects,  but  the  Company,  their  servants,  or  assigns,  shall  resort  to  India, 
without  being  licensed  by  the  Company,  upon  pain  of  forfeiting  ships  and 
cargoes,  with  imprisonment,  till  the  offenders  give  one  thousand  pounds  bond 
to  the  Company,  not  to  trade  thither  again. —  Nevertheless,  for  the  encour- 
agement of  merchant-strangers  and  others  to  bring  in  commodities  into  the 
realm,  the  Queen  gives  power  to  the  Company  to  grant  licenses  to  trade  to  the 
East  Indies ;  and  she  promises  not  to  grant  leave  to  any  others  to  trade  thither 
during  the  Company's  term,  without  their  consent.  The  majority  of  any 
general  meeting  of  the  Company  may  admit  apprentices,  servants,  factors, 
&c.  to  the  fellowship  or  freedom  of  the  said  Company.  .  .  .* 

Under  this  charter,  the  East  India  Company  was  formed  which,  after 
many  vicissitudes,  became  in  1876,  the  Empire  of  India. 

In  other  words  the  Company  consisted  of  a  governor,  a  deputy  governor 
and  a  committee  or  council  of  twenty-four  persons.  The  governor  (the  first 
being  named  in  the  charter)  and  all  other  officers  were  to  be  chosen  in  a 
general  court  or  assembly  of  the  whole  company;  and  every  member,  upon 
admission,  was  required  under  oath  "  to  traffic  as  a  freeman  of  the  Company." 
The  general  assembly,  consisting  of  the  governor,  the  council,  and  the  mem- 
bers of  the  corporation  sitting  as  a  body,  was  presided  over  by  the  governor 
or  deputy  governor,  and  the  assembly  was  authorized  "  to  make  all  reason- 
able laws,  constitutions,  etc.,  agreeable  to  the  laws  of  England  for  their  good 
Government  by  a  plurality  of  voices  " ;  and  also  "  to  punish  by  fines  and  im- 
prisonment the  offenders  against  these  laws." 

It  is  to  be  observed,  in  the  first  place,  that  this  charter  for  the  Asiatic  trade 
was  granted  before  an  English  colony  was  permanently  planted  on  the  main- 
land of  America ;  and,  in  the  second  place,  that  the  company  was  a  body  politic 
and  corporate,  possessed  of  legislative,  executive  and  judicial  functions,  al- 
though they  are  not  stated  separately  and  in  detail.  Upon  the  death  of  Queen 
Elizabeth  in  1603,  that  great  monarch  was  succeeded  by  James  I  of  England 
and  VI  of  Scotland,  who  granted  his  first  charter  of  Virginia  in  1606,  six 
years  after  that  of  his  predecessor  to  the  East  India  Company,  to  the  vast  tract 
of  land  named  in  honor  of  the  Virgin  Queen,  and  "  this  charter,  with  its 
subsequent  modifications,"  to  quote  Mr.  Morey's  illuminating  paper  on  The 
Genesis  of  a  Written  Constitution,  "  may  be  said  to  form  the  beginning  of 
the  constitutional  history  of  the  United  States."  2 
\meHdca°  This  charter,  drawn  in  first  instance  by  Sir  John  Popham,  Chief  Justice 

of  the  King's  Bench,  and  in  final  form  by  Sir  Edward  Coke,  then  Attorney 
General,  and  Sir  James  Doderidge,  Solicitor  General,  divided,  as  is  well 
known,  the  North  American  coast  into  two  parts,  assigning  the  southern  por- 

i  Adam  Anderson,  Historical  and  Chronological  Deduction  of  the  Origin  of  Commerce, 
Coombe  ed.,  1790,  Vol.  ii,  pp.  261-2.  . 

2  Annals  of  the  American  Academy  of  Political  and  Social  Science,  1891,  Vol.  i,  p.  537. 


EARLY   BACKGROUNDS   OF   THE    AMERICAN    CONSTITUTION  71 

tion,  between  the  34th  and  41st  degrees  of  latitude  to  the  London  Company, 
and  the  northern  portion,  between  the  38th  and  45th  degrees,  to  the  Plymouth 
Company.  Each  company  was  to  have  a  council  of  thirteen  members  resid- 
ing therein,  to  be  appointed  and  removed  by  the  Crown.  For  these  two  com- 
panies there  was  to  be  appointed  in  England  a  council  of  Virginia,  consisting 
of  thirteen  persons,  to  be  appointed  by  the  Crown,  and  to  pass  upon  and  to 
control  the  actions  of  the  colonies  subject  to  the  instructions  of  the  Crown. 

The  colonists,  whether  born  in  England  or  in  the  plantations,  were  spe- 
cifically endowed  with  "  all  Liberties,  Franchises  and  Immunities  within  any 
of  our  other  Dominions,  to  all  Intents  and  Purposes,  as  if  they  had  been 
abiding  and  born,  within  this  our  realm  of  England,  or  any  other  of  our  said 
Dominions."  1 

The  two  colonies  overlapped.  It  was  later  provided  in  the  charter  that 
there  should  be  a  space  of  100  miles  between  the  colonies  planted  in  accord- 
ance with  the  charter.  The  north  and  the  south  were  thus  to  be  separated 
geographically,  as  they  have  been  historically.  The  southern  colonies  have, 
as  a  matter  of  fact,  been  modeled  upon  the  charter  and  the  institutions  of 
Virginia.  The  northern  colonies  have  been  modeled  upon  the  charter  of  New 
England  and  its  institutions.  In  their  broad  lines  the  development  of  the  two 
sections  has  been  similar,  although  not  identical. 

It  is  also  to  be  noted  that  this  first  charter  of  Virginia  in  1606  is  less  liberal 
than  that  of  the  East  India  Company, —  because  James  I  was  more  of  a  be- 
liever in  divine  right  and  less  of  a  statesman  than  Elizabeth, —  in  that  it  does 
not  contain  a  grant  of  legislative  power,  and  subjected  the  council  in  the 
colony  and  the  council  in  England  to  the  royal  pleasure,  as  expressed  in  the 
King's  instructions. 

The  settlements  under  this  charter  did  not  thrive.  It  was  an  experiment  ^Second 
which,  within  less  than  three  years,  had  proved  defective.  Larger  powers 
and  more  specific  privileges  were  requisite.  The  result  therefore  was  a  second 
charter,  probably  drawn  in  first  instance  by  Sir  Edward  Sandys,  and  in  final 
form  by  Sir  Henry  Hobart,  Attorney,  and  Sir  Francis  Bacon,  Solicitor  Gen- 
eral. Under  this  second  charter  the  company  or  association  is  created  a  body 
politic,  to  be  known,  called  and  incorporated  by  the  name  of  "  The  Treasurer 
and  Company  of  Adventurers  and  Planters  of  the  City  of  London,  for  the  first 
Colony  in  Virginia."  The  council  and  treasurer,  or  any  of  them,  should  in 
the  future  be  nominated  and  chosen  "  out  of  the  Company  of  the  said  Ad- 
venturers, by  the  Voice  of  the  greater  part  of  the  said  Company  and  Adven- 
turers, in  their  Assembly  for  that  Purpose."  The  council,  under  the  presi- 
dency of  its  treasurer  or  his  deputy,  was  to  appoint  all  "  Governors,  Officers, 
and  Ministers  ...  fit  and  needful  to  be  .  .  .  used  for  the  Government  of 

1  Thorpe,  Charters  and  Constitutions,  Vol.  7,  p.  3788;  Poore,  pp.  1891-2. 


72 


THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


A  Third 
Charter 


Court 

and 

Assembly 


the  said  Colony  and  Plantation;"  and  the  council  should  hereafter  likewise 
"  make,  ordain,  and  establish  all  Manner  of  Orders,  Laws,  Directions,  Instruc- 
tions, Forms  and  Ceremonies  of  Government  and  Magistracy,  fit  and  neces- 
sary for  and  concerning  the  Government  of  the  said  Colony  and  Plantation." 
The  Treasurer  and  Company  "  and  such  Governors,  Officers,  and  Ministers  " 
appointed  by  them  for  that  purpose,  should,  within  the  precincts  of  Virginia, 
"  have  full  and  absolute  Power  and  Authority  to  correct,  punish,  pardon, 
govern,  and  rule  "  the  King's  subjects  residing  within  the  Colony,  "  accord- 
ing to  such  Orders,  Ordinances,  Constitutions,  Directions,  and  Instructions," 
established  by  the  council,  and  "  in  Defect  thereof  in  case  of  Necessity,  accord- 
ing to  the  good  Discretion  of  the  said  Governor  and  Officers  respectively,  as 
well  in  Cases  capital  and  criminal,  as  civil,  both  Marine  and  other ;  So  always 
as  the  said  Statutes,  Ordinances  and  Proceedings  as  near  as  conveniently  may 
be,  be  agreeable  to  the  Laws,  Statutes,  Government,  and  Policy  of  this  our 
Realm  of  England."  1 

By  this  second  charter  the  Company  is  created  a  body  politic,  with  legis- 
lative, executive  and  judicial  functions,  and  the  council  created  by  the  first 
charter  to  reside  within  the  colony  is  displaced  by  a  governor  and  officers 
invested  by  the  corporation  with  powers  of  supervision  and  control. 

Time  and  experience  having  shown  the  need  of  ampler  powers,  a  third 
charter,  likewise  drafted  in  first  instance  by  Sir  Edward  Sandys  and  finally  by 
Sir  Henry  Hobart,  Attorney,  and  Sir  Francis  Bacon,  Solicitor  General,  was 
granted  in  1612,  by  virtue  of  which  the  London  Company  received  the  au- 
thority requisite  to  plant,  develop  and  cultivate  the  colony  as  the  Crown  had 
and  the  proprietor  should  possess. 

Passing  over  minor  matters,  such  as  the  grant  of  the  Bermuda  Island  to 
the  Company,  the  Treasurer  and  Company  of  Adventurers  and  Planters  were 
empowered,  once  a  week  or  oftener  at  their  pleasure,  to  "  hold,  and  keep  a 
Court  and  Assembly  for  the  better  Order  and  Government  of  the  said  Plan- 
tation, and  such  Things  as  shall  concern  the  same ;  And  that  any  five  Persons 
of  our  Council  for  the  said  first  Colony  in  Virginia,  for  the  Time  being,  of 
which  Company  the  Treasure [r],  or  his  Deputy,  to  be  always  one,  and  the 
Number  of  fifteen  others,  at  the  least,  of  the  Generality  of  the  said  Company, 
assembled  together  in  such  Manner,  as  is  and  hath  been  heretofore  used  and 
accustomed,  shall  be  said,  taken,  held,  and  reputed  to  be,  and  shall  be  a 
sufficient  Court  of  the  said  Company,  for  the  handling  and  ordering,  and  dis- 
patching of  all  such  casual  and  particular  Occurrences,  and  accidental  Matters, 
of  less  Consequence  and  Weight,  as  shall  from  Time  to  Time  happen,  touch- 
ing and  concerning  the  said  Plantation."  2     Here  we  have  a  corporation  au- 


i  Thorpe,  Charters  and  Constitutions,  Vol.  7,  pp.  3795,  3797,  3798.  3801 
1898,  1899,  1901. 

-  Thorpe,  ibid.,  p.  3805 ;  Poore,  p.  1904. 


Poore,  pp.  1893, 


EARLY   BACKGROUNDS   OF   THE   AMERICAN    CONSTITUTION  73 

thorized  to  hold  weekly  meetings  of  such  members  as  happened  to  be  present, 
under  the  presidency  of  its  executive,  provided  not  less  than  fifteen  members 
of  the  company  attend,  for  the  transaction  of  ordinary  matters. 

But  the  affairs  of  the  company  beyond  the  seas  were  not  ordinary  matters, 
and  they  needed  the  attention,  not  of  the  few  who  might  happen  to  attend, 
but  of  the  many  who  should  be  present  and  take  part  in  their  settlement. 
Therefore,  the  charter  provided  for  this  eventuality  in  the  passage  of  its  text 
immediately  succeeding  that  which  has  been  quoted : 

And  that  nevertheless,  for  the  handling,  ordering,  and  disposing  of  Mat-  greatand 
ters  and  Affairs  of  greater  Weight  and  Importance,  and  such  as  shall  or  may,  courts 
in  any  Sort,  concern  the  Weal  Publick  and  general  Good  of  the  said  Company 
and  Plantation,  as  namely,  the  Manner  of  Government  from  Time  to  Time  to 
be  used,  the  ordering  and  Disposing  of  the  Lands  and  Possessions,  and  the 
settling  and  establishing  of  a  Trade  there,  or  such  like,  there  shall  be  held 
and  kept  every  Year,  upon  the  last  Wednesday,  save  one,  of  Hillary  Term, 
Easter,  Trinity,  and  Michaelmas  Terms,  for  ever,  one  great,  general,  and  sol- 
emn Assembly,  which  four  Assemblies  shall  be  stiled  and  called,  The  four 
Great  and  General  Courts  of  the  Council  and  Company  of  Adventurers  for 
Virginia;  In  all  and  every  of  which  said  Great  and  General  Courts,  so  as- 
sembled, our  Will  and  Pleasure  is,  and  we  do,  for  Us,  our  Heirs  and  Succes- 
sors, for  ever,  Give  and  Grant  to  the  said  Treasurer  and  Company,  and  their 
Successors  for  ever,  by  these  Presents,  that  they,  the  said  Treasurer  and 
Company,  or  the  greater  Number  of  them,  so  assembled,  shall  and  may  have 
full  Power  and  Authority,  from  Time  to  Time,  and  at  all  Times  hereafter, 
to  elect  and  chuse  discreet  Persons,  to  be  of  our  said  Council  for  the  said  first 
Colony  in  J'irginia,  and  to  nominate  and  appoint  such  Officers  as  they  shall 
think  fit  and  requisite,  for  the  Government,  managing,  ordering,  and  dispatch- 
ing of  the  Affairs  of  the  said  Company;  And  shall  likewise  have  full  Power 
and  Authority,  to  ordain  and  make  such  Laws  and  Ordinances,  for  the  Good 
and  Welfare  of  the  said  Plantation,  as  to  them  from  Time  to  Time,  shall  be 
thought  requisite  and  meet:  So  always,  as  the  same  be  not  contrary  to  the 
Laws  and  Statutes  of  this  our  Realm  of  England;  1 

Bearing  in  mind  the  fact  that  the  third  charter  confirmed  the  powers  and 
privileges  granted  by  the  second,  while  adding  to  them  in  the  respects  quoted, 
we  have  at  last  reached,  by  three  successive  steps  the  charter  of  the  East 
India  Company,  granted  by  Queen  Elizabeth  in  1600,  created  for  profit,  with 
the  difference  that,  in  addition  to  the  profit  from  trade,  the  charter  of  Vir- 
ginia contemplated  the  settlement  of  a  plantation  and  the  creation  of  a  colony 
as  well.  For  this  purpose  the  Company  was  empowered  to  admit  new  mem- 
bers, who,  when  admitted,  became  entitled  to  the  rights  and  privileges  pos- 
sessed by  the  other  members,  thus  making  it  possible  for  the  Company  to  in- 
clude all  persons  who  should  become  inhabitants  of  the  colony.  Thus,  the 
full  and  general  court,  assembled  as  aforesaid,  was  authorized  from  time  to 
time  and  for  all  time  to  "  elect,  choose  and  admit  into  their  Company,  and 

1  Thorpe,  Charters  and  Constitutions.  Vol.  7,  p.  3805;   Poore,  pp.  1904-5. 


74 


THE    UNITED   STATES:    A    STl'DY    IX    INTERNATIONAL   ORGANIZATION 


A  Repre- 
sentative 
Assembly 


A  Fore- 
cast of 
American 
Liberty 


Society,  any  Person  or  Persons,  as  well  Strangers  and  Aliens  born  in  any 
Part  beyond  the  Seas  wheresoever,  being  in  Amity  with  us,  as  our  natural 
Liege  Subjects  born  in  any  our  Realms  and  Dominions;  "  and  that  all  such 
persons  were  thereupon  entitled  to  "  have,  hold,  and  enjoy  all  and  singular 
Freedoms,  Liberties,  Franchises,  Privileges,  Immunities,  Benefits,  Profits,  and 
Commodities  whatsoever,  to  the  said  Company  in  any  Sort  belonging  or  ap- 
pertaining, as  fully,  freely  and  amply  as  any  other  Adventurers  now  being,  or 
which  hereafter  at  any  Time  shall  be  of  the  said  Company,  hath,  have,  shall, 
may,  might,  or  ought  to  have  and  enjoy  the  same  to  all  Intents  and  Purposes 
whatsoever."  * 

The  settlers  scattered  themselves  throughout  the  little  colony,  so  that,  in 
1619,  they  might  be  said  to  form  eleven  separate  communities,  impressed,  ap- 
parently, with  the  desire  to  assemble,  as  is  declared  to  be  the  wont  of  Eng- 
lishmen. This  they  did  under  the  authority  of  the  governor  of  the  colony, 
who  himself  was  apparently  authorized  thereto  by  a  commission  executed 
by  the  Virginia  Company  in  November,  1618,  and  on  July  30,  1619  two  mem- 
bers or  burgesses  from  each  of  the  eleven  settlements  met  with  the  governor 
and  council  in  the  little  church  in  Jamestown,  forming  the  first  representative 
assembly  ever  meeting  in  the  New  World. 

Two  years  later,  in  July,  1621,  this  action  of  the  governor  and  of  the  set- 
tlers was  specifically  confirmed  in  a  formal  ordinance,  which  apparently  estab- 
lished in  that  part  of  America,  now  comprised  within  the  United  States,  the 
American  system  of  liberty,  that  is  to  say,  the  exercise  of  political  power  in 
accordance  with  and  pursuant  to  the  terms  of  a  written  document  emanating 
from  superior  authority,  whether  that  document  be  a  charter,  an  ordinance, 
a  statute,  a  constitution,  or  whether  emanating  from  a  company,  the  crown, 
or  the  people.     This  ordinance,  which  is  appropriately  called  the  Constitution 
of  the  Treasurer,  Council  and  Company  in  England,  created  "  two  Supreme 
Councils  in  Virginia,  for  the  better  Government  of  the  said  Colony  afore- 
said," 2  for  the  reasons  stated  in  what  may  be  called  the  preamble  to  this 
constitution  or  instrument  of  government,  and  which  should  be  given  in  their 
language  of  the  first  person,  as  they  were  doing  it  directly,  not  indirectly. 
In  so  doing  the  treasurer,  council  and  company  declared  themselves  as  "  taking 
into  our  careful   Consideration  the  present   State   of   the   said   Colony  of 
Virginia,  and  intending,  by  the  Divine  Assistance,  to  settle  such  a  Form 
of  Government  there,  as  may  be  to  the  greatest  Benefit  and  Comfort  of  the 
People,  and  whereby  all  Injustice,  Grievances,  and  Oppression  may  be  pre- 
vented and  kept  off  as  much  as  possible  from  the  said  Colony,  have  thought 

i  Thorpe,  Charters  and  Constitutions,  Vol.  7.  p.  3806;   Poore.  p    1905        .   . 
2  William   Stith,  History  of  the  First  Discovery  and  Settlement  of  Virginia,  Sabm  ed., 
1865,  App.  iv,  p.  32. 


EARLY   BACKGROUNDS   OF   THE    AMERICAN    CONSTITUTION  75 

fit  to  make  our  Entrance,  by  ordering  and  establishing  such  Supreme  Councils, 
as  may  not  only  be  assisting  to  the  Governor  for  the  time  being,  in  the  Admin- 
istration of  Justice,  and  the  Executing  of  other  Duties  to  this  Office  belong- 
ing, but  also,  by  their  vigilant  Care  and  Prudence,  may  provide,  as  well  for 
a  Remedy  of  all  Inconveniences,  growing  from  time  to  time,  as  also  for 
the  advancing  of  Increase,  Strength,  Stability,  and  Prosperity  of  the  said 
Colony." 

The  first,  to  be  called  the  Council  of  State,  appointed  by  the  Treasurer, 
Council  and  Company,  consisted  of  the  Governor  and  certain  specified  per- 
sons, who  were  directed  to  "  bend  their  Care  and  Endeavours  to  assist  the 
said  Governor,"  and  to  be  "  always,  or  for  the  most  Part,  residing  about  or 
near  the  Governor."  1  The  second  and  the  more  important  body  is  thus  de- 
scribed : 

The  other  Council,  more  generally  to  be  called  by  the  Governor,  once 
Yearly,  and  no  oftener,  but  for  very  extraordinary  and  important  Occasions, 
shall  consist,  for  the  present,  of  the  said  Council  of  State,  and  of  two  Bur- 
gesses out  of  every  Town,  Hundred,  or  other  particular  Plantation^  to  be 
respectively  chosen  by  the  Inhabitants :  Which  Council  shall  be  called  The 
General  Assembly,  wherein  (as  also  in  the  said  Council  of  State)  all  Matters 
shall  be  decided,  determined,  and  ordered,  by  the  greater  Part  of  the  Voices 
then  present ;  reserving  to  the  Governor  always  a  Negative  Voice.  And  this 
General  Assembly  shall  have  free  Power  to  treat,  consult,  and  conclude,  as 
well  of  all  emergent  Occasions  concerning  the  Publick  Weal  of  the  said  Colony 
and  every  Part  thereof,  as  also  to  make,  ordain,  and  enact  such  general  Laws 
and  Orders,  for  the  Behoof  of  the  said  Colony,  and  the  good  Government 
thereof,  as  shall,  from  time  to  time,  appear  necessary  or  requisite;  .  .  . 

But  as  this  was  an  agency  of  the  company,  possessed  under  its  charter  of  cer- 
tain enumerated  powers,  it  could  not  make  a  grant  to  its  agent  of  powers  and 
authority  greater  than  it  itself  possessed.  Hence,  the  general  laws  and  orders 
which  should  from  time  to  time  appear  necessary  or  requisite  in  behalf  of  the 
Colony  are  to  be  in  accordance  with  the  terms  of  the  charter,  and  accordingly 
the  general  assembly  and  the  Council  of  State  are  required,  in  the  succeeding 
passage,  "  to  imitate  and  follow  the  Policy  of  the  Form  of  Government,  Laws, 
Customs,  and  Manner  of  Trial,  and  other  Administration  of  Justice,  used  in 
the  Realm  of  England,  as  near  as  may  be,  even  as  ourselves,  by  his  Majesty's 
Letters  Patent  are  required."  2  But  as  the  possessors  of  limited  or  enumer- 
ated powers  are  wont  to  construe  them  so  liberally  in  their  own  behalf  as  to 
exceed  the  grant,  there  must  be  some  authority  to  pass  upon  the  exercise  of 
such  powers  and  to  keep  them  within  the  terms  of  the  grant.  Therefore,  it  ^*,i^t]oa 
was  provided  in  the  succeeding  article  of  the  ordinance,  "  that  no  Law  or  Ordi- 
nance, made  in  the  said  General  Assembly,  shall  be  or  continue  in  Force  or 

1  Stith,  History  of  Virginia,  App.  iv,  p.  33. 

2  Ibid.,  pp.  33-34. 


76  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Validity,  unless  the  same  shall  be  solemnly  ratified  and  confirmed,  in  a  Gen- 
eral Quarter  Court  of  the  said  Company  here  in  England,  and  so  ratified,  be 
returned  to  them  under  our  Seal."  And  by  an  act  of  generosity,  possible,  in- 
deed, in  men  of  good  will  but  not  to  be  expected  from  the  Crown  or  that  arti- 
ficial person  we  call  the  State,  it  was  further  provided  that  "  no  Orders  of 
Court  afterwards  shall  bind  the  said  Colony,  unless  they  be  ratified  in  like 
Manner  in  the  General  Assemblies." 

So  true  it  is,  as  stated  by  Guizot  in  his  History  of  Civilization,  that,  when 
there  scarcely  remained  traces  of  national  assemblies,  the  remembrance  of 
them,  of  "  the  right  of  free  men  to  join  together,  to  deliberate  and  transact 
their  business  together,  resided  in  the  minds  of  men  as  a  primitive  tradition 
and  a  thing  which  might  again  come  about."  1  Innocent  as  these  early 
settlers  were  of  the  customs  of  the  primitive  Germans,  as  depicted  by  Tacitus, 
they  were  unconscious  of  the  fact  that,  in  meeting  together,  they  were  follow- 
ing the  custom  of  the  great  assembly  in  England,  known  to  them  and  to  us  by 
the  name  of  Parliament,  the  Lords  and  Commons  of  which  met  together  and 
transacted  their  business  in  a  single  house  for  a  long  period  of  time.  In  like 
manner  so  the  governor,  council  and  burgesses  continued  to  meet  together. 
However,  in  1680,  the  then  governor,  "  Lord  Colcpcppcr,  taking  Advantage 
of  some  Disputes  among  them,"  to  quote  the  language  of  a  Virginian  historian 
Houses  of  the  day,  "  procur'd  the  Council  to  sit  apart  from  the  Assembly ;  and  so  they 

became  two  distinct  Houses,  in  Imitation  of  the  two  Houses  of  Parliament  in 
England,  the  Lords  and  Commons;  and  so  is  the  Constitution  at  this  [1705] 
Day."  - 

The  powers  of  the  company  were  resumed  by  the  Crown  in  1624.  From 
this  period  until  the  Revolution  the  colony  was  governed  under  instructions 
from  the  Crown,  as  doubtless  it  would  have  been  under  a  charter  if  one  had 
again  been  granted.  On  this  state  of  affairs  Mr.  Morey  feels  justified  in 
saying  in  his  own  behalf,  and  vouching  for  the  truth  of  it  a  distinguished 
English  authority,  who  can  not  be  considered  as  having  a  thesis  to  maintain : 

It  will  be  seen  that  all  the  essential  features  of  this  constitution  were  a  re- 
production of  the  constitution  of  the  London  Company  and  of  its  prototype, 
the  East  India  Company,  namely:  (1)  The  three  elements  of  the  government 
—  the  chief  executive,  the  council,  and  the  assembly;  (2)  the  administrative 
and  judicial  functions  of  the  governor  and  council;  and  (3)  the  legislative 
functions  of  the  governor,  council,  and  freemen  united  in  a  single  body.  The 
only  important  modifications  —  namely,  the  introduction  of  deputies  and  the 
granting  of  the  veto  power  to  the  governor  —  were  clearly  the  direct  result 
of  the  peculiar  circumstances  in  which  the  colony  was  placed ;  the  one  due 
simply  to  convenience,  and  the  other  to  the  desire  on  the  part  of  the  company 
to  preserve  as  far  as  possible  its  control  over  the  legal  acts  of  the  colony.3 

IF.  Guizot,  The  History  of  Civilization.  1858,  Vol.  iii,  p.  199. 

2  Robert  Beverly,  History  of  Virginia,  1722,  p.  203. 

3  Annals  of  tlie  American  Academy,  1891,  Vol.  i,  pp.  542-3. 


EARLY    BACKGROUNDS    OF   THE   AMERICAN    CONSTITUTION 


77 


South 


The  authority  invoked  by  Mr.  Morey  is  that  of  George  Chalmers,  who, 
after  mentioning  the  provisions  of  the  ordinance,  says  in  his  Introduction  to 
the  History  of  the  American  Colonies,  first  published  in  1780: 

"  Thus  we  trace  to  a  commercial  company  the  source  of  those  free  sys- 
tems of  provincial  government,  that  has  distinguished  the  English  colonies 
above  all  others  for  their  regard  for  the  rights  of  men.  In  this  famous  or- 
dinance, we  behold  the  model  from  which  every  future  provincial  form  was 
copied,  though  varied  by  difference  of  circumstance."  x 

While  the  experience  of  Virginia  is  repeated  in  all  of  the  colonies,  it  is  but  Between 
natural  that  the  southern  colonies,  including  Maryland,  should  follow  more  and 
closely  in  the  steps  of  what  is  affectionately  called  the  Old  Dominion,  taking 
as  their  basis  a  trading  company  and  a  political  corporation,  with  the  seat  of 
authority  in  England,  not  in  America.  The  northern  colonies,  as  was  also 
natural,  followed  more  closely  the  experience  and  the  example  of  Massa- 
chusetts, in  which  the  charter  was  that  of  a  trading  company  and  of  a  body 
politic,  with  the  seat  of  authority  in  England.  The  charter  was,  however, 
transferred  to  America  by  the  grantees,  then  apparently  possessing  what  has 
come  to  be  known  as  Yankee  shrewdness,  by  the  simple  expedient  of  appoint- 
ing the  governor  and  officers  of  the  company  from  those  who  were  about  to 
settle  and  who  actually  did  settle  in  the  colony.  Thus  in  New  England  the 
colony  and  the  trading  company  became  one  and  the  same. 

It  will  be  recalled  that  the  charter  of  1606,  granted  to  the  London  Com- 
pany, divided  the  territory  in  America  to  which  the  Crown  of  Great  Britain 
laid  claim  into  two  sections,  the  southern,  out  of  which  the  southern  colonies, 
including  Maryland,  were  primarily  carved,  and  the  northern  section,  within 
which  the  colonies  of  New  England  and  what  are  now  the  Middle  States  were 
principally  created.  The  second  charter,  granted  to  the  London  Company  in 
1609,  excluded  the  northern  section  and  restricted  itself  to  Virginia,  which, 
extensive  as  it  was,  occupied  but  a  part  of  the  southern  division.  In  1620 
the  Plymouth  Company  obtained  also  a  second  charter  dealing  only  with  the 
northern  division,  which,  as  stated,  had  been  separated  by  the  second  charter 
to  the  London  Company  granted  eleven  years  previously. 

The  second  charter  of  the  Plymouth  Company  is  similar  to  although  not 
identical  with  the  second  of  the  London  Company.  It  possesses  in  general 
the  same  powers  and  authority,  which,  however,  are  separately  analyzed.  By 
this  charter  the  Plymouth  Company  became  the  Council  of  Plymouth  for  New 
England,  and  the  starting  point  for  the  colonies  of  New  England,  and  for 
the  Middle  States  which  followed,  as  it  were,  in  its  wake. 

After  reciting  the  grant  of  the  Virginia  charter  of  1606  and  the  subse- 

1  George  Chalmers,  Introduction  to  the  History  of  the  Revolt  of  the  American  Colonies, 
1845,  Vol.  i,  pp.  16-17. 


Company 


78  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

quent  separation  of  the  London  and  Plymouth  Companies  under  the  charter 
of  1609,  the  patent  vests  in  the  members  of  the  Company  the  territory  from 
sea  to  sea  lying  between  the  40th  degree  —  which,  it  may  be  said,  passes 
through  the  present  city  of  Philadelphia  —  and  the  48th  degree  of  North 
Latitude ;  and  the  territory  was  henceforth  to  be  known  by  the  name  of  New 
Plymouth  England  in  America.     For  the  better  planting  and  governing  of  New  Eng- 

land, a  body  politic  and  corporate  was  created  in  the  English  town  of  Plymouth 
in  the  county  of  Devon,  to  consist  of  forty  persons  and  to  be  known  by  the 
name  of  the  Council  established  in  Plymouth  in  the  County  of  Devon  "  for 
the  planting,  ruling,  ordering,  and  governing  of  New-England,  in  America." 
The  council  was  authorized  to  fill  vacancies  in  its  membership,  to  receive,  hold 
and  dispose  of  realty  and  personal  property,  and,  as  a  body  corporate,  to  sue 
and  be  sued,  and  to  elect  from  their  members  a  president,  to  hold  office  during 
their  pleasure.  The  council  was  also  authorized  in  its  discretion  to  admit 
such  persons  as  they  should  think  fit  "  to  be  made  free  and  enabled  to  trade 
.  .  .  unto  .  .  .  New-England  .  .  .,  and  unto  every  Part  and  Parcell  thereof, 
or  to  have  .  .  .  any  Lands  or  Hereditaments  in  New-England  .  .  .,"  accord- 
ing to  such  rules  and  regulations  as  the  council  might  be  pleased  to  estab- 
lish in  pursuance  of  the  powers  contained  in  the  patent.  In  addition,  the 
charter  specifically  granted  full  power  and  authority  to  the  council  to  "  nomi- 
nate, make,  constitute,  ordaine,  and  confirme  by  such  Name  or  Names,  Sale 
or  Sales,  as  to  them  shall  seeme  Good ;  and  likewise  to  revoke,  discharge, 
change,  and  alter,  as  well  all  and  singular,  Governors,  Officers,  and  Ministers, 
which  hereafter  shall  be  by  them  thought  fitt  and  needful  to  be  made  or  used, 
as  well  to  attend  the  Business  of  the  said  Company  here,  as  for  the  Govern- 
ment of  the  said  Collony  and  Plantation,  and  also  to  make  ...  all  Manner 
of  Orders,  Laws,  Directions,  Instructions,  Forms,  and  Ceremonies  of  Govern- 
ment and  Magistracy  fitt  and  necessary  for  and  concerning  the  Government 
of  the  said  Collony  and  Plantation,  so  always  as  the  same  be  not  contrary 
to  the  Laws  and  Statutes  of  this  our  Realme  of  England,  and  the  same  att  all 
Times  hereafter  to  abrogate,  revoke,  or  change,  not  only  within  the  Precincts 
of  the  said  Collony,  but  also  upon  the  Seas  in  going  and  coming  to  and  from 
the  said  Collony,  as  they  in  their  good  Discretions  shall  thinke  to  be  fittest  for 
the  good  of  the  Adventurers  and  Inhabitants  there."  *  The  governors,  officers 
and  ministers  to  be  appointed  by  the  council  were  authorized  and  empowered, 
and  the  council,  governors,  officers  and  ministers,  appointed  by  the  council, 
were  authorized,  according  to  the  nature  and  limits  of  their  offices  "  within 
the  said  Precincts  of  New-England  ...  to  correct,  punish,  pardon,  governe, 
and  rule  all  such  ...  as  shall  from  time  to  time  adventure  themselves  in  any 
Voyage  thither,  or  that  shall  att  any  Time  heerafter  inhabit  in  the  Precincts 

1  Thorpe,  Charters  and  Constitutions,  Vol.  3,  pp.  1831-33;  Poore,  p.  925. 


EARLY   BACKGROUNDS   OF   THE    AMERICAN    CONSTITUTION  79 

or  Territories  of  the  said  Collony  as  aforesaid,  according  to  such  Laws,  Orders, 
Ordinances,  Directions,  and  Instructions  as  by  the  said  Councill  aforesaid 
shall  be  established ;  and  in  Defect  thereof,  in  Cases  of  Necessity,  according  to 
the  good  Discretions  of  the  said  Governors  and  Officers  respectively,  as  well 
in  Cases  capitall  and  criminall,  as  civill,  both  marine  and  others,  so  allways 
as  the  said  Statutes,  Ordinances,  and  Proceedings,  as  near  as  conveniently 
may  be,  agreeable  to  the  Laws,  Statutes,  Government  and  Policie  of  this  our 
Realme  of  England."  J  After  providing  that  unauthorized  persons  should  not 
enter  upon  and  dwell  within  the  precincts  and  territory  of  New  England,  and 
that  if  they  so  do  they  may  be  proceeded  against  and  expelled  therefrom,  it 
was  finally  provided,  insofar  as  material  to  the  present  purpose,  that  "  all 
and  every  the  Persons,  beinge  our  Subjects,  which  shall  goe  and  inhabitt 
within  the  said  Collony  and  Plantation,  and  every  of  their  Children  and 
Posterity,  which  shall  happen  to  be  born  within  the  Limitts  thereof,  shall 
have  and  enjoy  all  Liberties,  and  ffranchizes,  and  Immunities  of  free  Denizens 
andiiaturall  Subjects  within  any  of  our  other  Dominions,  to  all  Intents  and 
Purposes,  as  if  they  had  been  abidinge  and  born  within  this  our  Kingdome 
of  England,  or  any  other  our  Dominions."  - 

Within  a  few  years  after  this  patent,  settlements  were  made  in  the 
territory  adjoining  Massachusetts  Bay,  and,  desiring  to  regularize  their  con- 
dition and  to  set  up  for  themselves,  they  obtained  a  grant  for  a  land  and 
trading  company.  Wishing,  however,  to  have  their  venture  confirmed  by 
the  highest  authority,  they  applied  to  the  Crown  to  confirm  their  patent,  to 
which  were  added  powers  of  government  by  the  royal  charter  of  March  4, 
1628-9.  This  first  charter  of  Massachusetts  was  the  third  royal  charter  for 
New  England,  just  as  the  Virginia  charter  of  1611-12  was  the  third  royal 
charter  for  that  portion  of  America,  and,  like  it,  so  similar  in  terms  that  a 
reference  to  the  summary  of  that  charter  would  suffice,  were  it  not  for  the 
importance  of  the  colony  whereof  it  was  the  charter  and  of  the  group  of  col- 
onies to  the  north  of  Maryland. 

After  a  recital  of  the  patent  of  1620  to  the  Council  of  New  England,  and 
the  grant  by  that  Council  to  the  Land  and  Trading  Company  of  1627-8,  both 
of  which  were  confirmed  by  the  present  charter,  the  grantees  and  "  all  such 
others  as  shall  hereafter  be  admitted  and  made  free  of  the  Company  and 
Society  hereafter  mencoed,"  were  created  "  one  Body  corporate  and  politique 
in  Fact  and  Name,  by  the  Name  of  the  Governor  and  Company  of  the  Matta- 
chusetts  Bay  in  Newe-England,"  by  which  name  they  were  to  have  perpetual 
succession,  to  plead  and  be  impleaded,  to  sue  and  to  be  sued,  and  to  maintain 
actions  "  of  what  kinde  or  nature  soever,"  and  authorized  to  "  acquire  .  .  . 

1  Thorpe,  Charters  and  Constitutions,  Vol.  3,  p.  1832;  Poore,  pp.  925-6. 

2  Thorpe,  ibid.,  p.  1839 ;  Poore,  p.  930. 


SO  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

any  Landes,  Tenements,  or  Hereditaments,  or  any  Goodes  or  Chattells,"  with 
power  to  dispose  thereof  "  as  other  our  liege  People  of  this  our  Realme  of 
England,  or  any  other  corporacon  or  Body  politique  of  the  same  may  law- 
fully doe."  • 

In  order  to  effect  the  purpose  for  which  the  colony  was  created,  "  one 
Governor,  one  Deputy  Governor,  and  eighteene  Assistants  .  .  .,  to  be  from 
tyme  to  tyme  .  .  .  chosen  out  of  the  Freemen  of  the  saide  Company,  for  the 
tyme  being,"  it  was  provided  that  the  officers  should  "  applie  themselves  to  take 
Care  for  the  best  disposeing  and  ordering  of  the  generall  buysines  and  Affaires 
of  .  .  .  the  saide  Landes  and  Premisses  .  .  .,  and  the  Plantacion  thereof, 
and  the  Government  of  the  People  there."  The  charter  thereupon  appointed 
and  mentioned  by  name  the  first  governor,  the  deputy  governor,  and  the  assist- 
ants, to  hold  office  for  such  time  and  in  such  manner  as  subsequently  specified 
in  the  charter,  empowering  the  governor  or  deputy  governor  to  call  together 
the  members  of  the  company  so  assembled.  After  authorizing  the  governor 
or  deputy  governor  to  call  together  the  company,  the  charter  then  provides 
that  the  governor,  deputy  governor  and  assistants  "  shall  or  maie  once  every 
Moneth,  or  oftener  at  their  Pleasures,  assemble  and  houlde  and  keepe  a 
Courte  or  Assemblie  of  themselves,  for  the  better  ordering  and  directing  of 
their  Affaires."  2  Seven  or  more  assistants,  with  the  governor  or  deputy 
governor,  were  to  constitute  a  sufficient  court. 

For  the  larger  and  more  important  matters,  as  in  the  case  of  the  third 
charter  of  Virginia,  a  general  assembly  was  to  be  held  four  times  a  year,  to  be 
styled  "  the  foure  greate  and  generall  Courts  of  the  saide  Company,"  which 
assembly,  to  be  composed  of  the  governor,  or  in  his  absence  of  the  deputy 
governor,  and  of  the  assistants  and  at  least  six  assistants  or  the  freemen  pres- 
ent, or  the  greater  part  of  them,  "  shall  have  full  Power  and  authoritie  to 
choose,  nominate,  and  appointe,  such  and  soe  many  others  as  they  shall  thinke 
fitt,  and  that  shall  be  willing  to  accept  the  same,  to  be  free  of  the  said  Com- 
pany and  Body  .  .  .  and  to  elect  and  constitute  such  Officers  as  they  shall 
thinke  fitt  and  requisite  "  for  the  transaction  of  the  affairs  of  the  governor 
and  company.  The  assembly  was  to  poises-;,  in  addition,  the  attribute  of  sov- 
ereignty "  to  make  Lawes  and  Ordinnces  for  the  Good  and  Welfare  of  the 
saide  Company,  and  for  the  Government  and  ordering  of  the  saide  Landes 
and  Plantacon  and  the  People  inhabiting  and  to  inhabite  the  same,  as  to 
them  from  tyme  to  tyme  shalbe  thought  meete,  soe  as  such  Lawes  and  Ordi- 
nances be  not  contrarie  or  repugnant  to  the  Lawes  and  Statuts  of  this  our 
Realme  of  England." 

The  charter  thereupon  provided  that  officers  of  the  Company  were  to  be 

1  Thorpe,  Charters  and  Constitutions,  Vol.  3,  p.  1852;  Poore,  p.  936. 

2  Thorpe,  ibid.,  pp.  1852-53 ;  Poore,  p.  937. 


EARLY    BACKGROUNDS    OF   THE   AMERICAN    CONSTITUTION  81 

elected  annually  in  the  meeting  of  the  general  court  or  assembly  held  at  Easter, 
and  authority  is  given  to  fill  by  a  majority  of  voices  vacancies  caused  either  by 
death,  resignation  or  removal  for  cause;  that  the  officers  so  appointed  were 
required,  before  undertaking  their  duties,  to  take  an  oath  for  their  faithful 
performance ;  that  oaths  of  supremacy  and  allegiance  were  to  be  taken  by  all 
prospective  colonists ;  that  the  colonists  and  their  children,  whether  born  in 
England  or  in  the  colonies,  were  invested  with  all  the  liberties  and  immunities 
of  subjects  in  any  of  the  British  dominions  as  if  born  within  England.  There- 
upon follows  the  specific  authorization  to  the  governor  or  deputy  governor, 
assistants  and  freemen  of  the  company  assembled  in  one  joint  court 

or  in  any  other  Courtes  to  be  specially  sumoned  and  assembled  for  that 
Purpose,  or  the  greater  Parte  of  them  .  .  .  from  tyme  to  tyme,  to  make, 
ordeine,  and  establishe  all  Manner  of  wholesome  and  reasonable  Orders, 
Lawes,  Statutes,  and  Ordinnces,  Direccons,  and  Instruccons  not  contrarie  to 
the  Lawes  of  this  our  Realme  of  England,  aswell  for  setling  of  the  Formes  and 
Ceremonies  of  Governm1  and  Magistracy,  fitt  and  necessary  for  the  said 
Plantacon,  and  the  Inhabitants  there,  and  for  nameing  and  stiiing  of  all  sorts 
of  Officers,  both  superior  and  inferior,  which  they  shall  finde  needefull  for 
that  Governement  and  Plantacon,  and  the  distinguishing  and  setting  forth  of 
the  severall  duties,  Powers,  and  Lymytts  of  every  such  Office  and  Place,  and 
the  Formes  of  such  Oathes  warrantable  by  the  Lawes  and  Statutes  of  this  our 
Realme  of  England  as  shalbe  respectivelie  ministred  vnto  them  for  the  Ex- 
ecucon  of  the  said  severall  Offices  and  Places ;  as  also,  for  the  disposing  and 
ordering  of  the  Electrons  of  such  of  the  said  Officers  as  shalbe  annuall,  and  of 
such  others  as  shalbe  to  succeede  in  Case  of  Death  or  Removeall,  and  min- 
istring  the  said  Oathes  to  the  newe  elected  Officers,  and  for  Imposicons  of 
lawfull  Fynes,  Mulcts,  Imprisonment,  or  other  lawfull  Correccon,  according 
to  the  Course  of  other  Corporacons  in  this  our  Realme  of  England,  and  for 
the  directing,  ruling,  and  disposeing  of  all  other  Matters  and  Thinges,  whereby 
our  said  People,  Inhabitants  there,  may  be  soe  religiously,  peaceablie,  and 
civilly  governed,  as  their  good  Life  and  orderlie  Conversation  maie  wynn 
and  incite  the  Natives  of  [that]  Country  to  the  Knowledg  and  Obedience  of 
the  onlie  true  God  and  Sauior  of  Mankinde,  and  the  Christian  Fayth,  which 
in  our  Royall  Intencon,  and  the  Adventurers  free  Profession,  is  the  principall 
Ende  of  this  Plantacion.1 

Inasmuch  as  the  provisions  of  this  charter  speak  for  themselves,  it  does 
not  seem  necessary  to  comment  upon  them  further  than  to  say  that  the  grant 
constitutes  the  grantees,  and  such  persons  as  they  should  admit  to  the  com- 
pany, its  representatives  in  legislative,  executive  and  judicial  matters,  in 
accordance  with  the  terms  of  the  charter,  with  the  usual  provision  that  all 
action  should  be  in  conformity  with  the  laws  and  customs  of  England.  Un- 
der this  charter  a  local  government,  known  as  "  London's  Plantation  in  Massa- 
chusetts Bay  in  New  England  "  was  established  at  Salem  under  the  direction 
of  John  Endicott.     Shortly  thereafter,  in  1630,  the  charter  and  government 

1  Thorpe.  Charters  and  Constitutions,  Vol.  3,  p.  1857;  Poore,  p.  940. 


82 


THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL    ORGANIZATION 


Growth 
oi  Repre- 
sentative 

Institutions 


of  the  colony  were  transferred  to  America,  the  local  government  was  discon- 
tinued, and  remained  in  effect  until  the  charter  was  annulled  in  1684,  which, 
however,  was  replaced  by  a  royal  charter  in  1691  after  the  expulsion  of  James 
II,  granting  substantially  the  same  rights  and  privileges,  with  the  exception 
that  the  governor  was  hereafter  to  be  appointed  by  the  Crown  instead  of 
elected  by  the  Assembly,  as  under  the  previous  charter. 

There  is  an  interesting  passage  in  Mr.  Hutchinson's  History  of  the  Colony 
of  Massachusets-Bay  in  which  that  devoted  son  of  New  England  and  accurate 
historian  traces  the  origin  and  growth  of  representative  institutions  in  the  Bay 
Colony.  "  The  people,"  he  says,  "  began  to  grow  uneasy,  and  the  number  of 
freemen  being  greatly  multiplied,  an  alteration  of  the  constitution  seems  to 
have  been  agreed  upon  or  fallen  into  by  a  general  consent  of  the  towns,  for 
at  a  general  court  for  elections,  in  1634,  twenty-four  of  the  principal  inhab- 
itants appeared  as  the  representatives  of  the  body  of  freemen,  and  before 
they  proceeded  to  the  election  of  magistrates,  the  people  asserted  their  right  to 
a  greater  share  in  the  government  than  had  hitherto  been  allowed  them,  and 
resolved,  '  That  none  but  the  general  court  had  power  to  make  and  establish 
laws  or  to  elect  and  appoint  officers,  as  governor,  deputy  governor,  assistants, 
treasurer,  secretary,  captains,  lieutenants,  ensigns,  or  any  of  like  moment,  or 
to  remove  such  upon  misdemeanor,  or  to  set  out  the  duties  and  powers  of 
these  officers  —  That  none  but  the  general  court  hath  power  to  raise  monies 
and  taxes,  and  to  dispose  of  lands,  viz.  to  give  and  confirm  proprieties.'  "  1 
Mr.  Hutchinson  states  that  after  these  resolutions  they  proceeded  to  the  elec- 
tion of  magistrates  and  that  they  further  determined  "  That  there  shall  be 
four  general  courts  held  yearly,  to  be  summoned  by  the  governor  for  the  time 
being,  and  not  to  be  dissolved  without  the  consent  of  the  major  part  of  the 
court  — That  it  shall  be  lawful  for  the  freemen  of  each  plantation  to  chuse 
two  or  three  before  every  general  court,  to  confer  of  and  prepare  such  busi- 
ness as  by  them  shall  be  thought  fit  to  consider  of  at  the  next  court,  and 
that  such  persons,  as  shall  be  hereafter  so  deputed  by  the  freemen  of  the 
several  plantations  to  deal  in  their  behalf  in  the  affairs  of  the  commonwealth, 
shall  have  the  full  power  and  voices  of  all  the  said  freemen  derived  to  them 
for  the  making  and  establishing  of  laws,  granting  of  lands,  &c.  and  to  deal 
in  all  other  affairs  of  the  commonwealth,  wherein  the  freemen  have  to  do,  the 
matter  of  election  of  magistrates  and  other  officers  only  excepted,  wherein 
every  freeman  is  to  give  his  own  voice."  Mr.  Hutchinson  vouchsafes  a  fur- 
ther reason  for  this  action  on  the  part  of  the  early  settlers,  saying :  "  The  free- 
men were  so  increased,  that  it  was  impracticable  to  debate  and  determine  mat- 
ters in  a  body,  it  was  besides  unsafe,  on  account  of  the  Indians,  and  prejudicial 
to  their  private  affairs,  to  be  so  long  absent  from  their  families  and  business, 

1  Hutchinson,  History  of  the  Colony  of  Massachusetts-Bay,  pp.  35-6. 


EARLY   BACKGROUNDS  OF   THE   AMERICAN    CONSTITUTION  83 

so  that  this  representative  body  was  a  thing  of  necessity,  but  no  provision  had 
been  made  for  it  in  their  charter."  Anticipating  Sir  John  Seeley's  happy 
remark  that  it  is  in  the  nature  of  Englishmen  to  assemble,  he  comments  on 
this  incident,  rightly  connecting  it  with  that  of  Virginia,  for  from  the  action 
of  these  two  colonies  representative  government  in  the  western  world  is  to 
be  dated :  "  Thus  they  settled  the  legislative  body  which,  except  an  alteration 
of  the  number  of  general  courts  which  were  soon  reduced  to  two  only  in  a 
year,  and  other  not  very  material  circumstances,  continued  the  same  as  long 
as  the  charter  lasted.  This  I  suppose  was  the  second  house  of  representatives 
in  any  of  the  colonies.  There  was,  as  has  been  observed,  no  express  provi- 
sion for  it  in  the  charter,  they  supposed  the  natural  rights  of  Englishmen 
reserved  to  them,  implied  it.  In  Virginia,  a  house  of  burgesses  met  first  in 
May  1620.  The  government  in  every  colony  like  that  of  the  colonies  of  old 
Rome  may  be  considered  as  the  effigies  parva  of  the  mother  State."  1 

As  in  the  case  of  Virginia  for  a  period  the  two  houses  sat  together,  so  in 
Massachusetts  they  were  together  for  ten  years,  when  a  separation  took  place 
for  the  reasons  and  with  the  results  stated  by  Mr.  Hutchinson :  "  About  this 
time  there  was  another  struggle  for  power  between  the  assistants  or  magis- 
trates, and  the  deputies.  The  latter  could  not  bear  their  votes  should  lose  their 
effect  by  the  non-concurrence  of  the  former  who  were  so  much  fewer  in  num- 
ber; but,  by  the  firmness  of  Mr.  Winthrop,  the  assistants  maintained  their 
right  at  this  time,  and  (March  25,  1644)  the  deputies,  not  being  able  to  prevail, 
moved  that  the  two  houses  might  sit  apart,  and  from  that  time  votes  were 
sent  in  a  parliamentary  way  from  one  house  to  the  other,  and  the  consent 
of  both  was  necessary  to  an  act  of  the  court."  2 

Thus,  the  colony  of  Virginia,  under  the  charter  of  a  trading  company  with  Mafsachus"tts 
its  governing  body  in  the  home  country,  and  the  colony  of  Massachusetts,  un-  compared 
der  the  charter  of  a  trading  company  with  its  seat  of  government  in  the  col- 
ony, provided  the  same  course  of  development,  the  one  serving  as  a  model 
for  what  may  be  called  the  southern  colonies,  and  the  other  for  those  which, 
in  comparison,  may  be  called  the  northern  colonies.  In  each  case  a  charter 
created  a  body  politic,  empowered  to  make  laws  for  the  government  of  the 
inhabitants,  conforming  as  far  as  possible  to  the  laws,  customs  and  institu- 
tions of  England.  In  each  case  a  governor,  supplied  with  a  council  or  assist- 
ants, was  the  executive.  A  legislature  in  each  came  into  being,  sharing  with 
the  council  the  making  of  laws  in  common,  and  in  each  case  separate  but 
nevertheless  sharing  in  the  responsibilities  of  government.  In  each  case  the 
authorization  was  a  written  instrument,  a  charter  or  a  constitution,  within 
which  the  actions  of  the  colony  were  lawful  and  beyond  which  their  actions, 


1  Hutchinson,  History  of  the  Colony  of  Massachusets-Bay,  p.  37. 

2  Ibid.,  p.  143. 


84 


THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


New  Instru- 
ments of 

nment 
Reverted 
to  Charters 


whether  executive,  legislative  or  judicial  were  unlawful  as  in  excess  of  the 
grant.1 

We  of  today  should  say  it  was  to  be  expected  that  the  colonies  would,  when 
they  had  broken  with  the  mother  country,  fashion  their  future  according  to 
their  own  desires,  and  that  in  so  doing  they  would  revert  to  written  charters 
in  which  the  rights  of  governors  and  governed  were  stated  in  clear  and  un- 
mistakable terms.  This,  with  the  exception  of  Connecticut  and  Rhode  Island, 
the  thirteen  colonies  did  when  they  declared  themselves  to  be  independent 
States.  This  the  States  did  when  they  confederated  for  the  first  time, 
drafting  Articles  of  Confederation  in  their  Congress,  to  be  binding  upon  all 
when  ratified  by  each.  This  representatives  of  the  States  did,  assembled  in  the 
Federal  Convention  in  Philadelphia  in  1787,  when  they  formed  a  more  perfect 
Union  than  that  of  the  Confederation,  in  that  charter  of  the  Union  and  of  the 
States  which  we  call  the  Constitution,  defining  the  rights  of  the  Union  and  of 
the  States  and  of  the  peoples  of  the  States,  with  courts  of  justice  to  pass  upon 
the  acts  of  each,  holding  them  valid  when  within  the  grant,  holding  them 
invalid  when  beyond  the  grant,  just  as  in  colonization  days  acts  in  excess  of 
the  charter  were  declared  to  be  null  and  void. 

1  This  process  is  stated  in  very  brief  compass  by  Richard  Frothingham  in  a  note  to  page 
18  of  his  Rise  of  the  Republic  of  the  United  States,  which  is  here  reproduced: 

Bancroft  (i.  250)  remarks,  that  "  popular  assemblies  burst  everywhere  into  life  with  a 
consciousness  of  their  importance  and  an  immediate  capacity  for  efficient  legislation."  These 
assemblies,  in  some  cases,  at  first  were  composed  of  the  whole  body  of  freemen.  The  dates 
of  the  formation  of  representative  assemblies  to  make  laws  in  the  colonies  are  as  follows :  — 
Virginia,  July  30,  1619. —  The  governor  summoned  two  burgesses  from  three  cities,  three 
hundreds,  three  plantations,  Argals'  gift,  and  Kiccowtan. —  Proceedings  in  New-York  Hist. 
Soc,  Coll.  2d  ser.  Ill,  communicated  by  Bancroft  in  1856.  The  governor,  council,  and  bur- 
gesses continued  to  meet  together,  Beverly  says  (Hist.  Va.  b.  iv.  31),  till  1680,  when  "Lord 
Colepepper,  taking  advantage  of  some  disputes  among  them,  procured  the  council  to  sit  apart 
from  the  assembly ;  and  so  they  became  two  distinct  houses,  in  imitation  of  the  two  Houses 
of  Parliament  in  England, —  the  Lords  and  Commons, —  and  so  is  the  Constitution  at  this 
(1705)  day." 

Massachusetts,  May  19,  1634. —  To  the  surprise  of  the  magistrates,  twenty-five  delegates, 
chosen  by  the  freemen  of  the  towns,  of  their  own  motion,  appeared  and  claimed  a  share  in 
making  the  laws.  The  claim  was  allowed,  and  their  names  appear  on  the  records  of  the 
day,  with  the  magistrates,  as  part  of  the  General  Court.  They  sat  together  for  ten  years. 
In  1644,  the  "Massachusetts  Records"  say  (i.  58),  on  account  "of  divers  inconveniences," 
of  the  magistrates  and  deputies  sitting  together,  and  "  accounting  it  wisdom  to  follow  the 
laudable  practice  of  other  States,  who  have  laid  groundworks,  for  government,"  it  was 
ordered  —  both  sitting  together  —  that  each  should  sit  apart ;  and  they  became  co-ordinate 
and  co-equal  branches,  the  assent  of  both  being  necessary  to  make  a  law.  Plymouth  had  a 
representative  assembly  in  1639.  The  charter  of  1692  named  twenty-eight  persons  as  coun- 
sellors: afterwards  they  were  chosen  annually  by  a  joint  vote  of  a  new  House  of  Representa- 
tives and  the  old  counsellors. 

Connecticut,  Jan.  14,  1639. —  An  agreement  among  the  towns  to  be  as  "  one  public  State 
or  commonwealth,"  provided  for  a  representativCassembly,  consisting  of  deputies  chosen  by 
the  freemen,  who,  with  a  governor  and  council,  composed  the  legislative  power.  They  sat 
together.  The  charter  of  1662  provided,  that  the  governor,  deputy-governor,  and  twelve 
magistrates  should  be  chosen  at  a  general  election,  and  deputies  should  be  chosen  by  the 
towns.  All  these  officers  sat  together.  In  1698.  it  was  ordered  that  the  governor  or  deputy- 
governor  and  magistrates  should  be  called  the  upper  house,  and  the  deputies  the  lower  house, 
that  thev  should  sit  apart,  and  that  no  bill  become  a  law  without  the  consent  of  both. — 
Trumbull's  Connecticut,  i.  102,  399. 

Maryland,  February,  1639. —  An  assembly  of  the  body  of  freemen  made  provision  for  a 
representative  assembly  (Chalmers'  Annals,  213).    The  composition  of  this  body  was  pecul- 


EARLY   BACKGROUNDS  OF   THE    AMERICAN    CONSTITUTION  85 

iar.  Griffith  (Maryland,  7)  says,  that,  "upon  writs  being  issued  by  the  governor,  delegates 
elected  by  the  freemen  were  to  sit  as  burgesses,  one  or  two  for  each  hundred,  with  the 
persons  especially  called  by  the  governor,  and  such  freemen  as  had  not  consented  to  the  election 
of  others,  or  any  twelve  or  more  of  them,  including  always  the  governor  and  secretary." 
The  burgesses  (Chalmers,  219)  desired,  in  1642,  to  sit  by  themselves;  and,  in  1650  (Griffith, 
13),  the  assembly  passed  an  act  dividing  themselves  into  two  houses;  the  governor  and 
secretary  and  council  to  be  the  upper  house,  and  the  burgesses  the  lower  house ;  and  all  bills 
assented  to  by  the  major  part  of  either  to  be  the  laws. 

Rhode  Island,  Way,  1647. —  Provision  was  made  under  the  patent  or  charter,  granted  in 
1644  by  the  Parliamentary  Commission,  for  a  representation  from  the  towns,  which  discussed 
proposed  laws  before  they  were  presented  to  a  general  assembly. —  Arnold's  Rhode  Island, 
i.  203.  By  the  charter  of  1663,  a  governor,  deputy-governor,  and  assistants  were  to  be 
chosen  annually  at  Newport ;  and  deputies  were  to  be  chosen  by  each  town.  At  first,  all  sat 
in  one  room.  In  1666,  there  was  an  effort  to  have  the  deputies  sit  as  a  separate  house ;  but 
the  measure  was  not  adopted  till  1696. —  Arnold,  327,  533.  The  governor  and  assistants,  or 
magistrates,  were  the  upper  house ;  the  deputies,  the  lower  house. 

North  Carolina,  1667. —  Settlers  were  invited  into  this  colony  by  the  promise  of  legislative 
freedom. — -Williamson,  i.  94.  Hawks  (i.  144)  thinks  there  was  an  assembly  in  1666;  but 
the  general  assembly,  under  the  charter,  consisted  of  the  governor,  twelve  councilors,  and 
twelve  delegates,  chosen  by  the  freeholders. —  Chalmers,  524.  At  a  later  period,  while  under 
proprietary  rule  (Hawks,  ii.  147),  the  general  assembly  was  divided  into  two  houses. 

New  Jersey,  1668. — ■  This  proprietary  colony  was  divided  at  first  into  East  Jersey  and 
West  Jersey,  which  had  separate  assemblies  :  the  first  held  in  East  Jersey  was  on  May  26, 
1668,  and  in  West  Jersey,  Nov.  25,  1681. —  Gordon's  New  Jersey,  44-48.  In  1702,  the  two 
parts  were  united,  a  royal  government  formed,  and  a  general  assembly  provided  for,  con- 
sisting of  the  governor,  a  council  of  twelve  nominated  by  the  king,  and  a  house  of  repre- 
sentatives chosen  by  the  freemen  of  the  counties  and  cities.  They  sat  together.  In  1738, 
the  council  was  made  a  separate  branch ;  the  governor  withdrew  from  it,  and  no  longer  was 
the  presiding  officer. —  Mulford's  New  Jersey,  335. 

South  Carolina,  1674. — ■  Settlers  were  promised  a  share  in  making  the  laws. —  Ramsay's 
South  Carolina,  i.  30.  In  1674,  the  freemen  elected  representatives,  when,  Ramsay  says, 
there  were  (ib.  i.  35)  "  the  governor,  and  upper  and  lower  houses  of  assembly;  and  these 
three  branches  took  the  name  of  parliament."  The  colony  became,  in  1720,  a  royal  govern- 
ment; it  was  settled  that  the  governor  and  council  be  appointed  by  the  king,  and  the  rep- 
resentatives be  chosen  by  the  people.  The  whole  house  was  chosen  at  Charleston,  where 
"there  had  been  often  great  tumults." — Carroll,  ii.  149.  About  1716,  the  colony  was  divided 
into  parishes ;  and  it  was  provided  that  each  parish  should  elect  its  representatives,  "  to  be 
balloted  for  at  the  several  parish  churches,  or  some  other  convenient  place  mentioned  in 
the  writs,  which  were  to  be  directed  to  the  church-wardens,  and  they  to  make  returns  of 
the  elected  members;  and  of  this  act  the  people  were  very  fond,  finding  it  gave  them  a 
greater  freedom  of  election." — lb.  ii.  149.  In  1720,  when  the  colony  became  a  royal  govern- 
ment, it  was  provided  that  the  governor  and  council  should  be  appointed  by  the  king,  and 
the  representatives  chosen  by  the  people. —  Ramsay,  i.  95. 

New  Hampshire,  March  16,  1680.—  By  the  decision  of  the  crown,  New  Hampshire  was 
separated  from  Massachusetts,  and  a  commission  constituted  a  president  and  council  "to 
govern  the  province;"  and  this  commission  authorized  the  qualified  voters  of  the  four 
towns  to  choose  an  assembly.  It  consisted  of  eleven  deputies,  and  sat  as  a  distinct  body; 
the  council  having  a  negative  on  its  acts.  The  king  engaged  to  "  continue  the  privilege  of 
an  assembly  in  the  same  manner  and  form,  unless  he  should  see  cause  to  alter  the  same." 
A  Royal  Commission,  in  1692,  provided  for  a  governor  and  council,  and  a  house  of  repre- 
sentatives, to  be  elected  by  the  towns ;  both  meeting  separately,  and  acting  as  co-ordinate 
branches  —  Belknap,  i.  139,  145. 

Pennsylvania,  1682. —  In  this  colony,  provision  was  made  for  a  representative  assembly 
under  the  Frame  of  Government  of  1682;  and  also  under  forms  tried  in  1683  and  1696. 
In  1701,  the  charter  agreed  upon  provided  for  an  annual  assembly  to  consist  of  four  dele- 
gates from  each  county,  or  a  greater  number,  if  the  governor  and  assembly  should  agree 
to  it.  This  assembly  was  to  choose  a  speaker  and  other  officers,  "to  be  judges  of  the 
qualifications  and  elections  of  their  own  members,  sit  upon  their  own  adjournments,  appoint 
committees,  prepare  bills,  impeach  criminals,  and  redress  grievances,  with  all  other  powers 
and  privileges  of  assembly,  according  to  the  rights  of  the  free-born  subjects  of  England, 
and  the  customs  in  any  of  the  Queen's  plantations  in  America." — Franklin's  Works,  iii.  155. 
In  this  colony  (Douglass's  Summary,  ii.  317),  the  council  had  no  concern  in  the  legislation 
otherwise  than  advising  the  governor.     The  legislature  bad  but  one  branch. 

Delaware,  1682. —  this  colony  became  a  dependency  on  New  York,  but  was  purchased 
by  William  Perm.     The  three  lower  counties  of  the  Delaware,  New  Castle,  Kent,  and  Sus- 


86  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

sex.  claimed,  under  the  charter  of  1681,  a  separate  assembly,  which  they  obtained,  but  had 
the  same  executive  as  Pennsylvania. 

New  York,  Oct.  17,  1683. —  The  governor  called  an  assembly,  composed  of  seventeen 
delegates,  who  adopted  a  charter  of  liberties,  apportioned  the  representatives  to  the  counties, 
and  claimed  to  be  a  free  assembly. —  Dunlap's  New  York,  i.  134.  In  1791.  the  first  assembly 
convened  after  the  Revolution,  and  consisted  of  seventeen  delegates.  The  acts  of  this  as- 
sembly are  the  first  that  were  considered  valid  by  the  courts  of  law. —  Smith's  New  York,  87. 
The  assembly,  down  to  the  Revolution,  did  not  exceed  twenty-seven  members. —  Dunlap's 
New  York,  i.  212.  The  council  consisted  of  twelve,  nominated  by  the  crown,  as  was  the 
governor,  and  sat  by  themselves. 

Georgia,  1754. —  The  first  representative  assembly  was  called  by  the  governor  under  a 
form  of  government  matured  by  the  Board  of  Trade,  and  authorized  by  the  king.  It  was 
composed  of  nineteen  delegates  from  three  districts,  and  (McCall's  Georgia,  i,  248)  had 
power  similar  to  other  colonial  assemblies. 


V 
FURTHER  COLONIAL  PRECEDENTS 

To  balance  a  large  state  or  society,  whether  monarchical  or  republican,  on  general  laws, 
is  a  work  of  so  great  difficulty,  that  no  human  genius,  however  comprehensive,  is  able, 
by  the  mere  dint  of  reason  and  reflection,  to  effect  it.  The  judgments  of  many  must 
unite  in  this  work:  Experience  must  guide  their  labour:  Time  must  bring  it  to  perfec- 
tion: And  the  feeling  of  inconveniences  must  correct  the  mistakes,  which  they  inevitably 
fall  into,  in  their  first  trials  and  experiments.  (David  Hume,  Of  the  Rise  and  Progress 
of  the  Arts  and  Sciences,  Essays  and  Treatises,  1742,  edition  of  1S25,  Vol.  I ,  f.  117.) 

To  any  one  who  had  inhabited  a  colony  governed  under  a  charter  the  effect  of  which 
on  the  validity  of  a  colonial  law  was  certainly  liable  to  be  considered  by  the  Privy  Council, 
there  was  nothing  startling  in  empowering  the  judiciary  to  pronounce  in  given  cases  upon 
the  constitutionality  of  Acts  passed  by  assemblies  whose  powers  were  limited  by  the  Con- 
stitution, just  as  the  authority  of  the  colonial  legislatures  was  limited  by  charter  or  by 
Act  of  Parliament.  (Albert  Venn  Dicey,  Introduction  to  the  Study  of  the  Law  of  the 
Constitution,  1885,  8th  edition,  1915,  p.  160.) 

The  free  fruition  of  such  liberties  Immunities  and  priveledges  as  humanitie,  Civilitie,  and 
Christianitie  call  for  as  due  to  every  man  in  his  place  and  proportion  without  impeach- 
ment and  Infringement  hath  ever  bene  and  ever  will  be  the  trancpiillitie  and  Stabilitie  of 
Churches  and  Commonwealths.  And  the  deniall  or  deprivall  thereof,  the  disturbance  if  not 
the  mine  of  both. 

We  hould  it  therefore  our  dutie  and  safetie  whilst  we  are  about  the  further  establishing 
of  this  Government  to  collect  and  expresse  all  such  freedomes  as  for  present  we  foresee 
may  concerne  us,  and  our  posteritie  after  us,  And  to  ratify  them  with  our  sollemne  consent. 

Wee  doe  therefore  this  day  religiously  and  unanimously  decree  and  ennfirme  these 
following  Rites,  liberties  and  priveledges  concerneing  our  Churches,  and  Civill  State  to 
be  respectively  impartiallie  and  inviolably  enjoyed  and  observed  throughout  our  Jurisdiction 
for  ever. 

1.  No  mans  life  shall  be  taken  away,  no  mans  honour  or  good  name  shall  be  stayned, 
no  mans  person  shall  be  arested,  restrayned,  banished,  dismemhred,  nor  any  waves  punished, 
no  man  shall  be  deprived  of  his  wife  or  children,  no  mans  goods  or  estaite  shall  be  taken 
away  from  him,  nor  any  way  indammaged  under  colour  of  law,  or  Countenance  of  Au- 
thoritie.  unlesse  it  be  by  vertue  or  equitie  of  some  expresse  law  of  the  Country  waranting 
the  same,  established  by  a  generall  Court  and  sufficiently  published,  or  in  case  of  the  defect 
of  a  law  in  any  partcculer  case  by  the  word  of  God.  And  in  Capitall  cases,  or  in  cases 
concerning  dismembring  or  banishment  according  to  that  word  to  be  judged  by  the  Generall 
2.  Every  person  within  this  Jurisdiction,  whether  Inhabitant  or  forreiner  shall  enjoy  the 
same  justice  and  law,  that  is  generall  for  the  plantation,  which  we  constitute  and  execute 
one  towards  another  without  partialitie  or  delay.  (The  Liberties  of  the  Massachuscts 
Colonic  in  New  England,  1641,  Old  South  Leaflets,  Vol.   VII,  No.  164,  p.  261.) 

In  appealing  to  the  common  law,  as  the  standard  of  exposition,  in  all  doubts  as  to  the 
meaning  of  written  instruments;  there  is  safety,  certainty,  and  authority.  The  institutions 
of  the  colonies  were  based  upon  it;  it  was  their  system  of  jurisprudence,  with  only  local 
exceptions,  to  suit  the  condition  of  the  colonists,  who  claimed  it  as  their  birth-right  and 
inheritance,  9  Cr.  33J,  in  its  largest  sense,  as  including  the  whole  system  of  English  juris- 
prudence, I  Gall.  493  ;  the  inexhaustible  fountain  from  which  we  draw  our  laws,  9  S.  &  R. 
330,  39,  58.  So  it  continued  after  the  colonies  became  states,  in  most  of  which  the  common 
law  was  adopted  by  acts  of  assembly,  which  gave  it  the  force  of  a  statute,  from  the  time  of 
such  adoption,  and  as  it  was  then ;  so  that  in  the  language  of  this  Court  — "  At  the  adop- 
tion of  the  constitution,  there  were  no  states  in  this  Union,  the  basis  of  whose  jurisprudence 
was  not  essentially,  that  of  the  common  law  in  its  widest  meaning;  and  probably  no  states 
were  contemplated,  in  which  it  would  not  exist."  3  Pet.  446,  8.  It  is  also  the  basis  on 
which  the  federal  system  of  jurisprudence  was  erected  by  the  constitution,  the  judiciary 
and  process  acts,  which   refer  to  "cases  in  law  and  in  equity,"  "suits  at  common  law" 

87 


88  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

"the  common  lazv,  the  principles  and  usages  of  laze"  as  they  had  at  the  time  been  defined 
and  settled  in  England;  5  Cr.  222;  3  Wh.  221;  4  Wh.  115,  16;  7  Wh.  45;  10  Wh.  29, 
3_>.  56,  S;  1  Pet.  613;  and  were  adopted  as  then  understood  by  the  old  states.  (Mr. 
Justice  Baldwin,  A  General  View  of  the  Origin  and  Nature  of  the  Constitution  and 
Government  of  the  United  States,  1S37,  pp.  1-4.) 

It  is  in  the  colonial  charter  that  we  find  the  germ  of  American  constitutional  law.  Each 
of  these,  whether  of  the  proprietary,  provincial,  or  republican  type,  was  the  fundamental  law 
of  the  jurisdiction,  according  to  which  its  government  was  to  be  organized  and  administered. 
Except  that  it  was  not  self-imposed,  and  that  it  was  subject  to  revocation  without  the  consent 
of  those  for  whom  it  was  made,  it  answered  very  nearly  to  our  modern  conception  of  what 
a  Constitution  should  be.  It  was  a  brief  document,  laying  down  a  general  scheme  of  political 
organization,  granting  large  powers  of  legislation  and  administration,  and  imposing  a  few, 
and  but  a  few,  fundamental  restrictions.  (Simeon  E.  Baldwin,  Constitutional  Law,  Two 
Centuries'   Growth   of  American  Lazv,  1701-1901,   1002,  p.    11.) 

The  supervising  power  of  the  crown  resided  nominally  in  the  King  in  Council;  really 
in  a  committee  of  the  Council  without  the  King.  Certain  members  of  the  Privy  Council 
were  thus  made  a  standing  tribunal,  by  the  name  of  the  Lords  of  Trade  and  Plantations. 
By  their  authority  any  colonial  statute  could  be  set  aside  as  unauthorized  by  the  charter, 
and  the  judgments  of  the  colonial  courts  re-examined  and  reversed.  From  1718  down  to 
the  treaty  of  peace  with  the  United  States  in  1783  they  were  provided  with  a  special 
counsel  of  their  own,  besides  being  entitled  to  call  on  the  Attorney-General  and  Solicitor- 
General  for  advice. 

In  one  respect  this  royal  prerogative,  which  was  not  infrequently  exercised,  was  favorable 
to  the  development  of  American  liberty  and  law.  It  secured  a  certain  unity  of  movement 
in  their  growth.  It  produced  symmetry  of  form.  It  built  up  a  sentiment  of  common 
nationality.  It  promoted  the  study  of  legal  institutions.  It  helped  to  rear  an  American 
bar,  worthy  of  the  name.  (Simeon  E.  Baldwin,  Constitutional  Law,  Two  Centuries'  Growth 
of  American  Lazv  1701-1901,  1902,  p.   12.) 

In  order  to  prepare  the  way  still  further  for  the  proposition  to  be  set  forth  in  this 
article,  it  is  necessary  to  say  that  the  Federal  Constitution  is  not  only  not  a  fiat-constitution 
projected  from  the  brain  of  the  Fathers,  nor  a  copy  of  the  contemporary  constitution  of 
England ;  it  is  also  not  founded  upon  any  previous  body  of  institutions  which  existed  merely 
in  the  form  of  customs.  As  it  is  itself  primarily  a  body  of  written  law,  so  it  is  based  upon 
successive  strata  of  written  constitutional  law.  (William  C.  Morcy,  The  Genesis  of  a 
Written  Constitution,  Annals  of  American  Academy  of  Political  and  Social  Science,  1890-91, 
Vol.  I,  p.  533-) 

The  law  of  corporations  was  the  law  of  their  being  for  the  four  original  New  Eng- 
land colonies.  Of  whatever  else  they  might  be  ignorant,  every  man,  woman,  and  child 
must  know  something  of  that.  It  governed  all  the  relations  of  life.  This  was  true,  whether 
the  government  to  which  they  were  subject  was  set  up  under  a  charter  from  the  crown  or 
those  who  held  a  royal  patent,  or  —  as  in  New  Haven  —  was  a  theocratic  republic,  owing 
its  authority  to  the  consent  of  the  inhabitants.  The  one  rested  on  the  law  of  private 
corporations  de  jure:  the  other  on  that  of  public  corporations  de  facto.  (Simeon  E. 
Baldwin,  Constitutional  Law,  Two  Centuries'  Growth  of  American  Lazv  1701-1901,  1902,  p. 
261.) 

The  proceedings  of  a  legal  character  in  which  the  colonies  had  always  been  most  inter- 
ested were  those  which  took  place  in   England  concerning  their  own   charters.  .  .  . 

All  the  earlier  colonial  charters  were  such  as  were  appropriate  for  the  regulation  of  a 
trading  adventure,  or  land  speculation.  Those  to  whom  they  were  granted  occupied  the 
relation  of  shareholders,  and  elected  their  boards  of  direction  and  government  to  sit 
in  England.  Long  before  1701,  these  boards  in  most  of  the  colonies  had  been  replaced 
by  local  legislatures,  meeting  on  American  soil,  and  the  authority  of  foreign  proprietaries 
was  soon  to  be  withdrawn  in  all.  .  .  . 

It  is  not  surprising  that  English  and  American  lawyers  should  have  been  inclined  to 
look  at  the  powers  of  the  colonial  assemblies  and  courts  in  very  different  ways.  The 
doings  of  the  original  companies,  under  which  the  British  plantations  here  were  made, 
were,  of  course,  as  they  took  place  in  England,  fully  subject  to  control  by  the  English 
courts.  ... 

The  system  of  judicial  appeals  to  the  King  in  Council  was  worked  out  with  more  and 
more  precision  as  the  eighteenth  century  advanced.  ... 

Some   of   the   judgments   rendered   by  the   King   in   Council   denied   validity   to   colonial 


FURTHER    COLONIAL    PRECEDENTS  89 

statutes  which  were  of  the  first  importance.  Such  was  that  in  the  case  of  Winthrop  v. 
Lechmere,  rendered  in  1727,  by  which  the  rules  of  inheritance  which  had  been  followed 
in  Connecticut  for  nearly  a  hundred  years  were  set  aside  as  contrary  to  the  laws  of  Eng- 
land respecting  primogeniture. 

Certain  political  ideas  were  thus  firmly  embedded  in  the  American  mind.  One  was 
that  every  statute  was  subject  to  be  set  aside  if  its  enactment  transcended  the  powers 
conceded  in  the  charter  to  the  colonial  legislature.  Another  was  that  there  was  a  supreme 
law  —  the  common  law  of  England,  modified  in  rare  instances  by  Act  of  Parliament  —  which 
was  one  and  the  same  for  every  colony,  and  that  if  any  of  their  judicial  tribunals  failed  to 
respect   it,  the  judgments  could  be   reversed   by  an   imperial  court  of   appeal. 

The  jurisdiction  of  the  King  in  Council,  maintained  hardly  more  for  the  protection  of 
the  royal  prerogative  than  to  repress  the  development  of  any  distinctively  colonial  and 
un-English  jurisprudence,  thus  served  directly  to  prepare  the  way  for  the  American  theory 
of  constitutional  law.  It  supplied  some  of  the  necessary  conditions  by  familiarizing  our 
people  with  the  elementary  conceptions,  the  institutional  prerequisites,  out  of  which  it  must 
grow.  (Simeon  E.  Baldwin,  Constitutional  Law,  Two  Centuries'  Growth  of  American 
Law,   1701-1901,   1902,   pp.   17-20.) 

As  the  colony  was  created  by  a  royal  charter  that  called  into  being  a  subordinate  law- 
making body,  that  body  could  neither  violate  the  terms  nor  transcend  the  powers  of  the 
instrument  to  which  it  owed  its  existence.  In  colonial  times  "questions  sometimes  arose 
.  .  .  whether  the  statutes  made  by  these  assemblies  were  in  excess  of  the  powers  con- 
ferred by  the  charter;  and,  if  the  statutes  were  found  in  excess,  they  were  held  invalid  by 
the  courts,  that  is  to  say,  in  the  first  instance  by  the  colonial  courts,  or,  if  the  matter  was 
carried  to  England,  by  the  Privy  Council."  (Bryce,  The  American  Commonwealth,  i,  243.) 
After  the  severance  from  the  mother  country,  that  power  to  annul  a  statute,  originally 
vested  in  the  Privy  Council,  was  simply  assumed  by  the  supreme  courts  of  the  emancipated 
states.  (Hannis  Taylor,  The  Origin  and  Growth  of  the  American  Constitution,  1011,  pp. 
103-4.) 


CHAPTER  V 


FURTHER    COLONIAL   PRECEDENTS 


"  Once  an 
Englishman 
Always  an 
Englishman  ' 


Relation 
of  English 
Law  to 
Colonies 


An  examination  of  the  various  charters  of  the  plantations  which  became, 
in  the  course  of  time,  the  thirteen  United  States  of  America,  discloses  that, 
with  the  single  exception  of  Pennsylvania  —  which,  in  fact,  however,  was  not 
an  exception  —  they  contained  the  express  declaration  that  the  colonists  and 
their  children  inhabiting  them  were  to  be  deemed  natural  born  British  subjects, 
and  that,  as  such,  they  should  enjoy  all  the  privileges  and  immunities  thereof. 
We  should  expect  this  to  be  so,  even  although  it  were  not  expressly  stated, 
as  the  doctrine  of  indelible  allegiance  was  then,  and  for  many  years  thereafter, 
the  cardinal  principle  of  English  law,  shortly  stated  in  the  phrase  with  which 
we  of  the  present  day  are  familiar,  "  Once  an  Englishman,  always  an  English- 
man;" from  which  it  would  seem  to  follow  that  such  an  one,  owing  the 
duties  of  an  Englishman,  would  likewise  possess  all  his  rights  and  privileges. 

It  was,  however,  foreseen  that  the  new  and  unknown  conditions  of  the 
new  and  unknown  world  to  which  the  colonists  were  transplanted  and  in 
which  they  took  root,  would  require  laws  fitted  to  the  new  environment ;  but, 
being  Englishmen,  subordinated  to  the  duties  and  possessing  the  rights 
thereof,  it  was  provided,  as  an  examination  of  the  charter  discloses,  that  such 
rules  and  regulations  as  they  might  frame  should,  negatively  expressed  since 
it  was  impossible  to  state  positively  their  content,  not  be  contrary  or  repugnant 
to  or  inconsistent  with  the  laws  of  England. 

We  should  expect  that  the  settlers  would  assume  the  rights  of  English- 
men without  giving  the  subject  much  thought,  that  they  would  think  less  of 
their  duties  and  be  inclined  to  test  their  legality  and  to  question  their  ap- 
plicability, even  if  they  should  be  found  to  be  grounded  in  the  common  or 
statute  law  of  the  old  country.  Especially  we  should  expect  the  colonists  to 
appeal  to  the  common  and  statutory  law  of  England  guaranteeing  the  privi- 
leges of  Englishmen  if  the  mother  country  should  attempt  to  deprive  them  of 
the  rights  and  privileges  of  Englishmen  guaranteed  to  them  by  the  common 
law  and  by  statutes  passed  before  the  settlement  of  the  colonies.  These 
they  could  properly  claim  to  carry  with  them,  and  they  could  not  unreason- 
ably claim  the  benefits  of  statutes  passed  after  the  settlement  of  the  colonies 
giving  Englishmen  at  home  greater  rights  than  they  possessed  at  the  time 

of  the  exodus  of  the  settlers. 

90 


FURTHER    COLONIAL    PRECEDENTS  91 

In  expressing  an  opinion  on  this  matter,  it  is  important  to  bear  in  mind  cinquestv. 
the  situation  of  the  New  World  when  the  colonies  were  planted,  for  if  the  Dilcove/y 
territories  parcelled  out  to  companies  and  forming  the  colonies  of  the  new 
world  should  be  considered  as  conquered  or  as  ceded  territories,  the  laws  there 
obtaining  at  the  time  of  such  cession  or  conquest,  unless  changed  by  the  new 
sovereign,  would  obtain  and  continue  in  force  unless  inconsistent  with  the 
political,  religious  and  moral  ideals  of  the  new  master.  Whereas,  if  these  ter- 
ritories were  to  be  regarded  as  vacant  lands,  subject  to  discovery  and  occupa- 
tion by  Englishmen,  there  would  be  no  laws  by  which  settlers  could  be  gov- 
erned other  than  those  which  they  carried  with  them  as  Englishmen.  Under 
the  first  theory,  the  common  law  would  not  follow  the  settler  but  would  have 
to  be  extended  to  the  territories  by  express  act ;  under  the  second,  the  common 
law  accompanied  the  settler  and  did  not  need  to  be  extended  to  the  territories. 
Sir  William  Blackstone,  whose  Commentaries  appeared  on  the  eve  of  the 
Revolution  and  whose  opinions  had  great  weight  with  the  colonists,  was 
inclined  to  the  opinion  that  the  territories  of  the  New  World  were  properly 
to  be  regarded  as  acquired  by  conquest  or  treaty,  saying  expressly  that  "  Our 
American  plantations  are  principally  of  this  latter  sort,  being  obtained  in 
the  last  century  either  by  right  of  conquest  and  driving  out  the  natives  (with 
what  natural  justice  I  shall  not  at  present  enquire),  or  by  treaties.  And 
therefore  the  common  law  of  England,  as  such,  has  no  allowance  or  authority 
there;  they  being  no  part  of  the  mother  country,  but  distinct  (though  depend- 
ent) dominions."  l 

If  the  facts  be  as  alleged  by  the  illustrious  commentator,  his  conclusions  ?n?erp«"aetion 
follow  as  a  matter  of  course,  but  it  does  not  appear  that  any  of  the  territory 
claimed  by  Great  Britain,  and  out  of  which  the  American  plantations  were 
formed,  was  conquered  territory.  New  York,  conquered  from  the  Dutch, 
it  may  be  said,  was  ceded  by  treaty,  but  the  conquest  and  the  treaty  were 
regarded  merely  as  removing  the  obstacles  to  and  as  confirming  the  English 
claim  based  upon  discovery.  It  is  believed,  therefore,  that  Blackstone's  state- 
ment lacks  the  premises  without  which  it  can  not  be  supported,  and  the  theory 
which  obtained  in  colonial  times,  and  the  theory  in  accord  with  the  facts,  was 
clearly  and  unequivocally  stated  by  Chief  Justice  Marshall  in  his  masterly 
opinion  in  Johnson  v.  M'Intosli  (8  Wheaton,  543),  decided  in  1823,  in  which 
that  eminent  jurist,  after  a  survey  of  the  discovery  and  settlement  of  the 
New  World,  held  that  the  title  of  European  nations  was  acquired  by  dis- 
covery, recognizing  in  the  native  Indians  a  right  to  possession  but  not  to 
ownership  of  the  land,  which  passed  to  the  discoverer  upon  discovery  and 
subject  to  appropriation  by  the  discoverer. 

1  Sir    William    Blackstone,    Commentaries    on    the    Laivs    of    England,    1765,    Vol    1, 
.p.  105. 


92 


THE   UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Rights  of 
Discovery  the 
True  Basis 


Blankard 
v.  Galdy 


Looking  upon  the  territory  as  acquired  by  discovery  and  not  by  conquest 
or  cession,  the  second  theory  is  to  be  accepted  as  true  in  fact,  and  an  authority 
or  two  need  only  be  cited  in  order  to  make  clear  that  the  common  law  of  Eng- 
land and  the  statutes  in  force  at  that  time  followed  the  colonists.  This  ques- 
tion arose  in  the  case  of  Blankard  v.  Galdy  (2  Salkeld,  411 ;  4  Modern,  222), 
decided  by  Lord  Chief  Justice  Holt  in  1693. 

From  the  facts  in  this  case  it  appeared  that  the  defendant  purchased  the 
office  of  provost  marshal  general  in  Jamaica,  relating  to  the  administration  of 
justice  in  that  island,  and  that  he  gave  bonds  for  the  purchase  price  of  the 
office.  In  an  action  of  debt  upon  the  bond,  the  defendant  pleaded  the  statute 
of  Edward  VI  against  buying  offices  concerning  the  administration  of  justice, 
that  the  statute  applied  to  the  island,  and  that  therefore  the  condition  upon 
which  the  bond  was  given  was  illegal  and  void.  In  reply  to  this  contention, 
the  plaintiff  stated  that  Jamaica  was  an  island  beyond  the  seas,  conquered  from 
the  Indians  and  Spaniards  in  the  time  of  Queen  Elizabeth,  and  that  the  in- 
habitants thereof  were  governed  by  their  own  laws  and  not  by  the  laws  of 
England.  To  this  the  defendant  rejoined  that,  before  the  conquest,  they  were 
indeed  governed  by  their  own  laws,  but  since  then  by  the  laws  of  England. 
On  behalf  of  the  plaintiff  Shower  argued,  in  terms  that  support  the  claims  of 
the  colonists  at  a  later  date,  that  "  on  a  judgment  in  Jamaica,  no  writ  of 
error  lies  here,  but  only  on  appeal  to  the  Council ;  and  as  they  are  not  repre- 
sented in  our  parliament,  so  they  are  not  bound  by  our  statutes,  unless 
specially  named."  Pemberton,  for  the  defendant,  contended  "  that  by  the 
conquest  of  a  nation,  its  liberties,  rights,  and  properties  are  quite  lost;  that  by 
consequence  their  laws  are  lost  too,  for  the  law  is  but  the  rule  and  guard 
of  the  other;  those  that  conquer,  cannot  by  their  victory  lose  their  laws,  and 
become  subject  to  others."  Chief  Justice  Holt,  apparently  delivering  the 
unanimous  opinion  of  his  brethren,  drew  the  distinction  between  the  settle- 
ment of  an  uninhabited  country  and  of  a  country  acquired  by  conquest  or  ces- 
sion. On  the  first  point  he  is  made  to  say  in  the  Salkeld  report  that  "  In  case 
of  an  uninhabited  country  newly  found  out  by  English  subjects,  all  laws  in 
force  in  England  are  in  force  there ;  "  on  the  second  point  that,  "  Jamaica  being 
conquered,  and  not  pleaded  to  be  parcel  of  the  kingdom  of  England,  but  part  of 
the  possessions  and  revenue  of  the  Crown  of  England,  the  laws  of 
England  did  not  take  place  there,  until  declared  so  by  the  conqueror  or  his 
successors.  .  .  .  That  it  was  impossible  the  laws  of  this  nation,  by  mere 
conquest,  without  more,  should  take  place  in  a  conquered  country;  because,  for 
a  time,  there  must  want  officers,  without  which  our  laws  can  have  no  force : 
That  if  our  law  did  take  place,  yet  they  in  Jamaica  having  power  to  make  new 
laws,  our  general  laws  may  be  altered  by  theirs  in  particulars."  In  another 
account  of  the  same  case  (4  Modern,  222),  the  court  is  reported  to  have  said, 


FURTHER    COLONIAL    PRECEDENTS       ,  93 

"  And  therefore  it  was  held,  that  Jamaica  was  not  governed  by  the  laws  of 
England  after  the  conquest  thereof,  till  new  laws  were  made;  for  they  had 
neither  sheriff  or  counties;  they  were  only  an  assembly  of  people  which  are 
not  bound  by  our  laws,  unless  particularly  mentioned."  Judgment  was 
accordingly  entered  for  the  plaintiff,  because,  being  a  conquered  country  and 
not  a  parcel  of  the  kingdom  of  England  but  a  part  of  the  possessions  of  the 
Crown,  the  laws  of  England  did  not  apply  unless  expressly  extended.1 

This  case,  which  may  justly  be  called  the  leading  one,  is  of  very  great  im-  Lawof0" 
portance,  as  it  is  believed  to  state  accurately  the  English  law  on  the  subject,  {^lfed 
and  in  accord  with  the  law  of  nations.  Looked  at  solely  from  the  first 
standpoint,  it  will  be  observed  that  it  draws  a  distinction  between  the  kingdom 
of  England,  on  the  one  hand,  in  which  the  common  and  statute  law  prevailed 
as  of  course;  and  the  possessions  of  the  Crown,  or,  as  Sir  William  Blackstone 
puts  it,  dependent  dominions.  For  the  kingdom  of  England,  the  Parliament 
legislated,  and  its  act  bound  English  subjects  within  the  kingdom.  The 
dominions  necessarily  required  law,  regulation  and  supervision,  and  they  were 
bound  by  act  of  Parliament  specifically  mentioning  and  applying  to  them,  inas- 
much as  the  act  of  Parliament  was  the  act  of  the  Crown,  the  lords  spiritual 
and  temporal  and  the  House  of  Commons,  that  is  to  say,  of  the  supreme  legis- 
lative authority  of  Great  Britain.  In  the  absence  of  such  a  legislative  act, 
the  King  himself  in  council  could  and  did  legislate  for  the  territories  subject 
to  the  Crown,  but  he  did  so  by  an  act  of  prerogative,  which  could  not  be 
contrary  to  but  must  be  in  accordance  with  the  law  of  the  land,  including 
tberein  acts  of  Parliament.     He  might,  however,  divest  himself  of  the  right 

1  The  law  of  this  subject  has  been  admirably  summarized  and  stated  by  Sir  Joseph  J'ekyll, 
Master  of  the  Rolls,  as  follows: 

Anonymous,  2  Peere  Williams,  75,  decided  in   1722. 

An  uninhabited  country  newly  found  out,  and  inhabited  by  the  English,  to  be  governed 
by  the  laws  of  England. —  A  conquered  country  to  be  governed  by  such  laws  as  the  con- 
queror will  impose :  but  until  the  conqueror  gives  them  new  laws,  they  are  to  be  governed 
by  their  own  laws,  unless  where  these  laws  are  contrary  to  the  laws  of  God,  or  totally  silent. 

Memorandum,  9th  of  August  1722,  it  was  said  by  the  Master  of  the  Rolls  to  have  been 
determined  by  the  Lords  of  the  privy  council,  upon  an  appeal  to  the  King  in  council  from 
the  foreign  plantations, 

1st,  That  if  there  be  a  new  and  uninhabited  country  found  out  by  English  subjects,  as 
the  law  is  the  birthright  of  every  subject,  so,  wherever  they  go,  they  carry  their  laws  with 
them,  and  therefore  such  new  found  country  is  to  be  governed  by  the  laws  of  England; 
though,  after  such  country  is  inhabited  by  the  English,  acts  of  parliament  made  in  England, 
without  naming  the  foreign  plantations,  will  not  bind  them  ;  for  which  reason,  it  has  been 
determined  that  the  statute  of  frauds  and  perjuries,  which  requires  three  witnesses,  and 
that  these  should  subscribe  in  the  testator's  presence,  in  the  case  of  a  devise  of  land,  does 
not  bind  Barbadoes ;  but  that, 

2rf/y,  Where  the  King  of  England  conquers  a  country,  it  is  a  different  consideration:  for 
there  the  conqueror,  by  saving  the  lives  of  the  people  conquered,  gains  a  right  and  property 
in  such  people;  in  consequence  of  which  he  may  impose  upon  them  what  laws  he  pleases. 
But, 

idly,  Until  such  laws  given  by  the  conquering  prince,  the  laws  and  customs  of  the  con- 
quered country  shall  hold  place;  unless  where  these  arc  contrary  to  our  religion,  or  enact 
any  thing  that  is  malum  in  se,  or  are  silent;  for  in  all  such  cases  the  laws  of  the  conquering 
country  shall  prevail. 

See  the  case  of  Blankard  v.  Galdy  (2  Salk.,  4111. 


94  THE    UNITED   STATES:    A    STL'DY    IN    INTERNATIONAL    ORGANIZATION 

to  exercise  his  prerogative,  as  held  in  the  leading  case  of  Campbell  v.  Hall 
(Cowper  204),  decided  by  the  Court  of  King's  Bench  in  1774,  at  the  very 
eve  of  the  Revolution. 

By  the  treaty  of  1763  between  France  and  Great  Britain  the  former  ceded 
to  the  latter  country  the  Island  of  Grenada,  which  had  been  conquered  by 
British  arms.  By  the  King's  proclamation  of  October  7,  1763,  the  governor 
of  the  colony  was  authorized  and  required  to  call  a  general  assembly  in  the 
manner  and  form  used  in  the  other  colonies  and  provinces  of  America,  which 
assembly,  together  with  the  council  and  governor,  was  authorized,  as  stated  by 
Lord  Mansfield  in  delivering  the  unanimous  opinion  of  the  court,  "  to  make, 
constitute,  and  ordain  laws,  statutes,  and  ordinances,  for  the  public  peace,  wel- 
fare, and  good  government  of  our  said  colonies  and  the  inhabitants  thereof,  as 
near  as  may  be  agreeable  to  the  laws  of  England,  and  under  such  regulations 
and  restrictions,  as  are  used  in  our  other  colonies."  On  April  9.  1764,  by  let- 
ters patent  under  the  great  seal,  the  King  appointed  General  Melville  governor 
"  with  a  power  to  summon  an  assembly  as  soon  as  the  state  and  circumstances 
of  the  island  would  admit,  and  to  make  laws  with  consent  of  the  governor 
and  council,  with  reference  to  the  manner  of  the  other  assemblies  of  the  king's 
provinces  in  America."  The  governor,  thus  commissioned,  arrived  in  Gren- 
ada on  December  14,  1764,  and  before  the  end  of  the  succeeding  year  an  as- 
sembly actually  met  in  the  island. 

But  before  the  Governor,  commissioned  on  the  9th  of  April,  1764,  arrived 
in  the  island,  letters  patent  under  the  great  seal  were  issued  on  July  20,  1764, 
laying  a  duty  or  impost  of  four  and  a  half  per  cent  on  certain  commodities 
grown,  produced,  and  exported  from  the  island  "  in  lieu  of  all  customs  and 
import  duties,  hitherto  collected  upon  goods  imported  and  exported  into  and 
out  of  the  said  island,  under  the  authority  of  his  most  Christian  Majesty." 
One  Campbell,  a  British  subject,  paid  this  duty  to  one  Hall,  a  collector  of  his 
Majesty's  customs,  and  an  action  of  money  had  and  received  was  brought  by 
Campbell  against  Hall  on  the  ground  "  that  the  money  was  paid  to  the  de- 
fendant without  any  consideration ;  the  duty,  for  which,  and  in  respect  of 
which  he  received  it,  not  having  been  imposed  by  lawful  or  sufficient  authority 
to  warrant  the  same."  Judgment  was  entered  for  the  plaintiff  on  the  ground, 
among  others,  that,  having  in  the  proper  exercise  of  his  prerogative  created 
an  assembly  in  Grenada,  with  power  to  raise  revenue  and  to  make  laws  with 
the  consent  of  the  council  and  governor,  the  King  had  divested  himself  of 
the  power  to  legislate,  as  he  otherwise  could  have  done  for  this  dependent 
dominion,  now  forming  a  part  of  the  kingdom  of  Great  Britain,  and  that  legis- 
lation to  bind  the  colony  should  henceforth  be  by  act  of  Parliament,  not  by  the 
prerogative  of  the  King  in  Council. 

It  is  interesting  to  note  in  this  connection,  although  dwelt  upon  in  another 


FURTHER    COLONIAL    PRECEDENTS  95 

place,  that  the  court  considered  the  question  of  an  excess  of  power  in  so  far 
as  the  rights  of  individuals  was  concerned  as  a  judicial  question,  since  the  let- 
ters patent  imposing  the  duty  were  in  excess  of  the  power  properly  lodged 
in  the  King,  thus  furnishing  a  precedent  whereof  the  framers  of  the  Consti- 
tution availed  themselves  for  setting  aside  acts  of  authority  inconsistent  with 
the  fundamental  law. 

After  summarizing  the  law  as  laid  down  in  Cahnris  Case  and  in  Blankard 
v.  Galdy,  already  cited  (although  Lord  Mansfield  did  not  refer  in  express 
terms  to  the  latter  case),  his  Lordship  said : 

That  if  the  king  (and  when  I  say  the  king,  I  always  mean  the  king  with- 
out the  concurrence  of  parliament,)  has  a  power  to  alter  the  old  and  to  in- 
troduce new  laws  in  a  conquered  country,  this  legislation  being  subordinate, 
that  is,  subordinate  to  his  own  authority  in  parliament,  he  cannot  make  any 
new  change  contrary  to  fundamental  principles :  he  cannot  exempt  an  in- 
habitant from  that  particular  dominion;  as  for  instance,  from  the  laws  of 
trade,  or  from  the  power  of  parliament,  or  give  him  privileges  exclusive  of 
his  other  subjects;  and  so  in  many  other  instances  which  might  be  put. 

In  support  of  his  views,  he  invoked  two  authorities,  who,  at  the  time  of 
giving  their  opinions,  were  respectively  Attorney  and  Solicitor  General : 

In  the  year  1722,  the  assembly  of  Jamaica  being  refractory,  it  was  re- 
ferred to  Sir  Phillip  Yorke  and  Sir  Clement  Wearge,  to  know  "  what  could 
be  done  if  the  assembly  should  obstinately  continue  to  withhold  all  the  usual 
supplies."  They  reported  thus:  "  If  Jamaica  was  still  to  be  considered  as 
a  conquered  island,  the  king  had  a  right  to  levy  taxes  upon  the  inhabitants ; 
but  if  it  was  to  be  considered  in  the  same  light  as  the  other  colonies,  no  tax 
could  be  imposed  on  the  inhabitants  but  by  an  assembly  of  the  island,  or  by  an 
act  of  parliament." 

Continuing  to  draw  for  illustration  upon  the  island  of  Jamaica,  with  whose 
history  Lord  Mansfield  was  familiar, —  as  he  had  examined  it  and  had  him- 
self, as  Attorney  General,  given  an  opinion  to  the  Crown  on  the  matter  in 
hand, —  he  proceeded  to  say  that  "  King  Charles  2d  by  proclamation  invited 
settlers  there,  he  made  grants  of  lands :  he  appointed  at  first  a  governor  and 
council  only:  afterwards  he  granted  a  commission  to  the  governor  to  call  an 
assembly."     The  conclusions  to  be  drawn  from  these  premises  he  thus  stated: 

The  constitution  of  every  province,  immediately  under  the  king,  has  arisen 
in  the  same  manner;  not  from  grants,  but  from  commissions  to  call  assem- 
blies: and.  therefore,  all  the  Spaniards  having  left  the  island  or  been  driven 
out,  Jamaica  from  the  first  settling  was  an  English  colony,  who  under  the 
authority  of  the  king  planted  a  vacant  island,  belonging  to  him  in  right  of  his 
crown ;  .  .  . 

And  from  this  state  of  affairs  he  draws  the  necessary  conclusion  that : 


96  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

A  maxim  of  constitutional  law  as  declared  by  all  the  judges  in  Calvin's 
Case  and  which  two  such  men,  in  modern  times,  as  Sir  Philip  Yorke  and  Sir 
Clement  Wearge,  took  for  granted,  will  require  some  authorities  to  shake. 

But,  in  addition  to  the  authority  of  these  two  distinguished  lawyers,  Lord 
Mansfield  stated  positively  that  there  was  no  authority  for  the  contrary  view, 
saying  that,  "  on  the  other  side,  no  book,  no  saying,  no  opinion  has  been 
cited ;  no  instance  in  any  period  of  history  produced,  where  a  doubt  had  been 
raised  concerning  it;"  and  "that  before  the  letters  patent  of  the  20th  July, 
1764,  the  king  had  precluded  himself  from  the  exercise  of  a  legislative 
authority  over  the  island  of  Grenada.  .  .  .  That  by  the  two  proclamations 
and  the  commission  to  Governor  Melville,  the  king  had  immediately  and  irre- 
coverably granted  to  all  who  were  or  should  become  inhabitants,  or  who  had, 
or  should  acquire  property  in  the  island  of  Grenada,  or  more  generally  to  all 
whom  it  might  concern,  that  the  subordinate  legislation  over  the  island  should 
be  exercised  by  an  assembly  with  the  consent  of  the  governor  and  council,  in 
like  manner  as  the  other  islands  belonging  to  the  king."  Although,  before 
July  20,  1764.  the  king  might  have  legislated,  after  that  date  His  Lordship 
said :  "  To  use  the  words  of  Sir  Philip  Yorke  and  Sir  Clement  Wearge,  '  it 
can  only  now  be  done,  by  the  assembly  of  the  island,  or  by  an  act  of  the  parlia- 
ment of  Great  Britain.'  " 

It  may,  however,  be  advisable,  in  this  connection,  to  invoke  again  the 
authority  of  the  same  distinguished  Attorney  General,  with  whom  a  greater 
even  than  Wearge  concurred,  as  it  regards  not  merely  the  subject  in  hand  but 
introduces  and  decides  a  different  and  a  related  phase  of  the  subject  which  it  is 
necessary  to  understand.  In  connection  with  the  petition  of  the  plaintiff  in 
Winthrop  v.  Lcclnncrc,  decided  by  the  Privy  Council  in  1728,  the  following 
questions  among  others  arose  :  "  whether  the  said  colony  [of  Connecticut]  have 
thereby  any  power  vested  in  them  of  making  laws  which  affect  property,  or 
whether  that  power  is  not  confined  to  the  making  of  by-laws  only,  and  whether 
if  they  have  not  the  power  of  making  laws  affecting  property,  they  have  not 
forfeited  their  charter  by  passing  such  laws."  To  this  series  of  questions  Sir 
Philip  Yorke  and  Sir  Charles  Talbot,  respectively  Attorney  and  Solicitor  Gen- 
eral, replied,  under  date  of  August  1,  1730,  "  we  have  considered  the  said 
charter  and  memorial,  and  are  of  opinion,  that  by  the  said  charter,  the  general 
assembly  of  the  said  province  have  a  power  of  making  laws  which  affect  prop- 
erty; but  it  is  a  necessary  qualification  of  all  such  laws,  that  they  be  reasonable 
in  themselves  and  not  contrary  to  the  laws  of  England ;  and  if  any  laws  have 
been  there  made,  repugnant  to  the  laws  of  England,  they  are  absolutely  null 
and  void."  x 

In  an  earlier  opinion,  rendered  to  the  Lords  Commissioners  of  Trade  and 

1  George  Chalmers,  Opinions  of  Eminent  Lawyers  on  Various  Points  of  English  Juris- 
prudence, American  ed.,  1858,  pp.  341-2. 


FURTHER  COLONIAL  PRECEDENTS  97 

Plantations,  Richard  West,  then  Counsel  to  the  Board  and  later  Lord  Chan- 
cellor of  Ireland,  stated,  it  is  believed,  the  conclusion  to  be  drawn  from  the 
wording  of  the  charters,  the  holdings  of  the  courts,  and  the  opinions  of  the  At- 
torneys and  Solicitors  General,  and  within  the  compass  of  a  single  sentence, 
that  "  The  common  law  of  England  is  the  common  law  of  the  plantations,  and 
all  statutes,  in  affirmance  of  the  common  law,  passed  in  England,  antecedent 
to  the  settlement  of  any  colony,  are  in  force  in  that  colony,  unless  there  is 
some  private  act  to  the  contrary ;  though  no  statutes  made  since  those  settle- 
ments are  there  in  force,  unless  the  colonies  are  particularly  mentioned."  * 

It  would  be  foreign  to  the  present  purpose  to  attempt  to  show  in  this 
place  the  sense  in  which  the  colonists  understood  and  exercised  their  right  to 
make  laws.  Suffice  it  to  say  that  new  conditions  produced  new  laws,  and 
although  each  colony  claimed  the  benefit  of  the  common  law  when  to  its  ad- 
vantage, it  legislated  and  insisted  upon  its  right  to  legislate  in  its  own  interest 
in  the  absence  of  provisions  of  the  customary  and  statute  law,  and  at  times  in 
the  very  teeth  of  either  or  both.  But,  as  will  presently  appear,  laws  in  ex- 
cess of  the  charter  were  either  negatived  by  the  governor  in  council,  the  active 
and  vigilant  miniature  of  the  King  in  Council,  or  by  the  King  himself  in 
Council  if  the  Governor  had  inadvertently  approved  a  statute  which  his  royal 
master  was  advised  to  disapprove,  or  by  a  judicial  proceeding,  by  the  Lords 
of  Appeal  in  the  Council,  reversing  a  colonial  judgment  based  upon  a  local  law 
contrary  to  the  laws  of  the  realm,  as  in  the  case  of  Winthrop  v.  Lechmere. 
The  result  seems  to  be,  however,  that  in  every  colony  customs  grew  up,  laws 
were  passed,  which  created  what  might  be  called  a  local  system,  reasonable  in 
the  opinion  of  the  colonies  and  not  opposed  to  the  law  of  the  mother  country 
as  it  should  be  interpreted  in  the  circumstances. 

In  a  letter  of  ex-President  Jefferson  dated  September  27,  1810,  and  ad- 
dressed to  Albert  Gallatin,  then  Secretary  of  the  Treasury  in  James  Madison's 
administration,  the  result  was  stated  with  respect  to  New  England  in  terms 
which  were  applicable  to  the  colonies  as  a  whole,  considering  the  individual 
conditions  of  each: 

Was  there  ever  a  profound  common  lawyer  known  in  one  of  the  Eastern 
States?  There  never  was,  nor  never  can  be  one  from  those  States.  The 
basis  of  their  law  is  neither  common  nor  civil;  it  is  an  original,  if  any  com- 
pound can  so  be  called.  Its  foundation  seems  to  have  been  laid  in  the  spirit 
and  principles  of  Jewish  law,  incorporated  with  some  words  and  phrases  of 
common  law  and  an  abundance  of  notions  of  their  own.  This  makes  an 
amalgam  siti  generis,  .  .  ? 

And  in  a  letter  written  two  years  later  to  John  Tyler,  Judge  of  the  United 

i  Ibid.,  p.  511. 

2  Writings  of  Thomas  Jefferson,  H.  A.  Washington  ed.,  1861,  Vol.  v,  p.  550. 


Colonial 
Statutes 


98  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

States  District  Court  of  Virginia,  and  father  of  the  future  President,  Mr. 
Jefferson  said : 

I  deride  with  you  the  ordinary  doctrine,  that  we  brought  with  us  from 
England  the  common  Ian-  rights.  This  narrow  notion  was  a  favorite  in  the 
first  moment  of  rallying  to  our  rights  against  Great  Britain.  But  it  was  that 
of  men  who  felt  their  rights  before  they  had  thought  of  their  explanation. 
The  truth  is,  that  we  brought  with  us  the  rights  of  men  —  of  expatriated  men. 
On  our  arrival  here,  the  question  would  at  once  arise,  by  what  law  will  we 
govern  ourselves?  The  resolution  seems  to  have  been,  by  that  system  with 
which  we  are  familiar,  to  be  altered  by  ourselves  occasionally,  and  adapted 
to  our  new  situation.  .  .  .  But  the  state  of  the  English  law,  at  the  date  of 
our  emigration,  constituted  the  system  adopted  here.1 

Mr.  Jefferson's  remark  seems  to  be  in  substantial  accord  with  history.  As 
a  matter  of  fact  the  colonists  were  not  familiar  with  the  common  or  statutory 
law  in  force  at  the  moment  of  their  departure  from  the  mother  country. 
They  were  not  lawyers ;  the  Bar  was  not  held  in  honor  until  many  years  later : 
there  were  very  few  books  of  authority  in  which  they  could  find  the  com- 
mon or  statute  law  during  the  course  of  the  17th  century,  and  still  fewer  of 
those  books  and  the  reports  containing  the  decisions  of  the  English  courts 
interpreting  the  common  and  statutory  law  made  their  way  to  the  colonies. 
It  was  only  on  the  eve  of  the  Revolution,  when  the  relations  between  the  col- 
onies had  become  closer  and  the  advocates  of  colonial  rights  and  privileges 
found  the  common  law  as  an  arsenal,  from  which  they  could  seize  weapons  to 
be  used  in  their  defense,  that,  in  Jefferson's  phrase,  "  they  thought  of  their 
explanation."  Thus,  it  is  stated  in  the  celebrated  Declaration  of  Resolves  of 
the  First  Continental  Congress,  dated  October  14,  1774: 

That  our  ancestors,  who  first  settled  these  colonies,  were  at  the  time  of 
their  emigration  from  the  mother  country,  entitled  to  all  the  rights,  liberties, 
and  immunities  of  free  and  natural-born  subjects,  within  the  realm  of  Eng- 
land. 

That  by  such  emigration  they  by  no  means  forfeited,  surrendered,  or  lost 
any  of  those  rights,  but  that  they  were,  and  their  descendants  now  are,  en- 
titled to  the  exercise  and  enjoyment  of  all  such  of  them,  as  their  local  and 
other  circumstances  enable  them  to  exercise  and  enjoy.  .  .  . 

That  the  respective  colonies  are  entitled  to  the  common  law  of  England, 
and  more  especially  to  the  great  and  inestimable  privilege  of  being  tried  by 
their  peers  of  the  vicinage,  according  to  the  course  of  that  law. 

That  they  are  entituled  to  the  benefit  of  such  of  the  English  statutes  as  ex- 
isted at  the  time  of  their  colonization ;  and  which  they  have,  by  experience, 
respectively  found  to  be  applicable  to  their  several  local  and  other  circum- 
stances.2 

It  is  the  most  familiar  of  maxims  that  no  man  can  be  a  judge  in  his  own 
case,  and  to  have  allowed  the  colonies  to  determine  for  themselves  whether 

1  Lyon  Gardiner  Tyler.  The  Letters  and  Times  of  the  Tylers,  Vol.  i,  p.  265. 

2  Journals  of  the  Continental  Congress,  Vol.  i,  pp.  68-9. 


FURTHER    COLONIAL    PRECEDENTS  99 

their  acts  of  legislation  were  within  the  charter  or  grant  would  have  placed 
their  future  wholly  within  their  own  hands,  and  would  have  amounted  to  a  re- 
nunciation on  the  part  of  Great  Britain  of  its  rights  to  the  colonies.  To  have 
conceded  to  Great  Britain  the  right  to  pass  upon  these  questions  would  or 
might  have  been  fatal  to  the  colonies,  as  the  mother  country  might  fairly  be 
counted  upon,  with  the  best  of  intentions,  to  interpret  the  laws  in  its  own 
interest.     There  was  thus  a  conflict  of  interests,  and  there  was  in  the  nature  Conflict 

of  Interests 

of  things  a  difficulty  arising  from  the  conflict  which  neither,  intent  on  its  own 
interest,  could  appreciate  in  so  far  as  it  affected  the  other.  Yet  the  solution 
of  the  difficulty  by  Great  Britain  was,  if  not  free  from  fault,  far  from  faulty, 
and  familiarity  with  the  difficulty  and  with  the  method  of  overcoming  it  en- 
abled the  United  States,  when  the  colonies  had  cut  adrift  and  set  up  for  them- 
selves, to  meet  and  to  solve  the  difficulty  which  presented  itself,  and  which 
must  always  present  itself,  in  an  empire  with  self-governing  colonies,  in  a  union 
of  States  conferring  upon  an  agent  the  exercise  of  large  sovereign  powers, 
in  the  unconscious  association  of  nations  which  we  call  the  society  of  nations, 
the  members  whereof  are  indeed  sovereign  powers. 

For  present  purposes,  the  prerogatives  of  the  Crown  may  be  defined  to  be  Prerogatives 
the  original  rights  which  the  kings  of  England  had  claimed  and  exercised,  and  Crown 
which  had  not  in  the  course  of  time  been  vested  in  the  Parliament,  or  in 
courts  of  justice,  provided,  however,  that  the  prerogatives  remaining  with  the 
Crown  were  not,  as  stated  by  Lord  Mansfield  in  a  passage  already  quoted  from 
the  case  of  Campbell  v.  Hall,  inconsistent  with  the  fundamental  laws  of  the 
realm.  These  prerogatives  the  king  exercised  in  his  Privy  Council  on  the 
advice  of  certain  persons  appointed  by  him,  as  he  had  formerly  exercised 
these  rights  in  the  older  and  larger  council  of  the  realm  before  he  had  divested 
himself  or  been  divested  of  them.  Deprived  of  its  functions  as  a  legislature 
and  a  court  for  the  realm,  the  Privy  Council  was  confined  to  administrative 
and  executive  functions  in  the  kingdom,  retaining  in  the  dependent  dominions 
legislative,  executive  and  judicial  rights,  which,  however,  could  not  be  con- 
trary to  the  fundamental  constitution  of  the  kingdom. 

In  so  far  as  the  exercise  of  these  prerogatives  had  not  been  granted  to  the 
colonies  they  remained  with  the  King  in  Council;  when  granted  to  the  col- 
onies they  could  not  lawfully  be  exercised  by  the  King  in  Council,  as  held  by 
Lord  Mansfield  in  the  leading  case  of  Campbell  v.  Hall.  But  even  in  such 
cases  the  King  in  Council  exercised  the  right  of  supervision  and  administra- 
tion; otherwise,  the  colonial  interpretation  might  differ  from  the  royal,  and 
the  system  become  one  of  inextricable  confusion.  The  Council  for  the  Gov- 
ernment of  Foreign  Plantations  established  by  Charles  II  was  abolished  in  commissioners 
1674.  A  permanent  hoard  was  created,  known  as  the  Lords  Commissioners  of  and  plantations 
Trade  and  Plantations,  composed  of  great  dignitaries,  who  were  members  of 


100 


THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Committee 
for  Hearing 
Appeals 


Three 

Kinds  of 

Appeals 

from 

Colonial 

Courts 


the  Privy  Council,  and  of  some  persons  not  members,  but  added  to  the  Board  to 
secure  its  efficiency.  The  chief  purpose  of  the  Lords  Commissioners  was  to 
advance  the  trade  of  the  Kingdom  and  also  of  the  colonies,  and  in  so  doing,  the 
interests  of  the  empire  would  be  advanced  —  although  the  chief  interest  was 
that  of  the  mother  country.  The  Lords  Commissioners  reported  to  the  King 
in  Council,  and,  upon  approval  of  their  recommendations,  appropriate  action 
was  taken  by  them.  They  recommended,  for  example,  instructions  to  be  sent 
to  the  Governors,  laws  to  be  approved  of  or  to  be  vetoed,  and,  in  case  of  dis- 
putes between  the  colonies  relating  particularly  to  boundaries,  they  suggested 
the  appointment  of  commissions  composed  of  members  from  adjoining  prov- 
inces, issued  instructions  to  the  commissioners,  and  recommended,  favorably, 
or  unfavorably,  their  awards  or  opinions  to  the  King  in  Council. 

For  matters  of  a  judicial  nature,  there  existed  a  Committee  for  Hearing 
Appeals  from  the  Plantations,  which  appears  to  have  been  not  a  specially 
appointed  committee  of  the  council  but  to  have  been  composed  of  such  mem- 
bers of  the  council  who  attended  and  gave  their  attention  to  the  appeals.  This 
committee  might,  if  it  chose,  consider  and  determine  the  matter  itself,  or  re- 
fer it  for  investigation  and  report  to  the  Lords  Commissioners  of  Trade  and 
Plantations,  whose  report  it  might  or  might  not  approve.  Its  action,  how- 
ever, was  submitted  to  the  King  in  Council  who,  in  the  period  of  the  Stuarts, 
attended  with  more  or  less  regularity,  but  who,  in  the  time  of  the  Hanover- 
ians, appears  to  have  been  present  only  on  formal  occasions  and  to  have  given 
his  assent  to  the  recommendations  of  the  Council  without  taking  part  in  its 
proceedings. 

Appeals  from  judgments  of  the  colonial  courts  might  be  of  three  kinds. 
First.  The  appeal  was  from  a  colonial  judgment,  in  which  the  appellant 
claimed  that  a  principle  of  law  was  wrongly  applied  because  of  an  irregularity 
in  procedure,  because  of  prejudice  on  the  part  of  the  judge,  or  because  of  the 
misapplication  of  a  principle  of  law.  In  these  circumstances  the  appellant  and 
defendant  would  be  heard  by  counsel,  either  by  the  Committee  for  Hearing  Ap- 
peals or  upon  reference  from  that  body  by  the  Lords  Commissioners  of  Trade 
and  Plantation,  and  proceedings  in  either  would  be  had  in  accordance  with 
English  justice.  If  the  case  were  referred  to  the  Lords  Commissioners,  their 
recommendation  would  be  reported  to  the  Committee  for  Hearing  Appeals, 
which  could  approve  it  or  modify  it.  Whereupon  the  original  or  amended 
recommendation  was  referred  to  the  King  in  Council,  upon  whose  approval  it 
became  a  decree  of  the  King  in  Council  and  established  the  law  of  the  case. 
In  ordinary  cases  this  would  not  involve  the  setting  aside  of  a  colonial  statute. 
It  is  to  be  supposed,  and  it  was  the  fact,  that  colonies  did  not  relish  appeals 
from  the  decisions  of  their  courts  and  were  indisposed  to  allow  appeals  from 
the  Governor  in  Council,  often  the  final  colonial  court  of  appeal.     But,  how- 


FURTHER    COLONIAL    PRECEDENTS  101 

ever  reluctant  the  colonies  might  be  to  allow  appeals  to  be  taken  to  the  King  in 
Council,  the  mother  country  was  inexorable,  declaring  it  to  be  the  right  of 
every  English  subject  residing  within  the  colonies  to  appeal  to  the  King  in 
Council ;  and  although  the  colonies  sought  to  prevent  appeals  which  they 
must  needs  permit,  by  allowing  them  only  where  large  sums  were  involved  and 
where  security  was  given  by  the  appellant  for  costs  and  for  the  payment  of 
the  judgment  in  case  the  judgment  should  be  affirmed  on  appeal,  the  Privy 
Council  decided  upon  petition  of  the  appellant,  irrespective  of  the  amount 
involved,  whether  it  would  or  would  not  allow  the  appeal  in  the  interest  of 
justice  and  its  uniform  administration. 

Second.  It  might  happen,  however,  that  the  judgment  appealed  from  was 
based  upon  the  statute  of  the  colony  claimed  to  be  contrary  or  repugnant  to  or 
inconsistent  with  the  laws  of  the  realm.  In  such  a  case  the  Privy  Council  would 
perforce  examine  the  laws,  and,  if  it  found  them  to  be  as  alleged,  it  declared 
them  to  be  null,  void  and  of  no  effect  and  reversed  the  decision  of  the  court 
based  upon  them.     In  certain  colonies,  more  especially  in  Connecticut  and 

Precedent  tor 

Rhode  Island  (for  the  charter  of  Rhode  Island  was  similar  to  that  of  Con-  the  Power  of 

v  the  supreme 

necticut),  the  repugnancy  of  colonial  legislation  to  the  laws  of  the  realm  LegSauT/es 
could  only  arise  in  a  judicial  proceeding  of  this  kind,  inasmuch  as  neither  of 
these  colonies  was  required  to  submit  its  laws  to  the  mother  country  for  ap- 
proval or  disapproval.  The  leading  case  on  this  point  is  that  of  Winthrop 
v.  Lechmere,  which  will  be  seen  to  be  a  direct  precedent  for  the  courts  of  the 
United  States  in  declaring,  in  a  judicial  proceeding,  laws  of  the  United  States 
or  of  the  States,  contrary  to  the  Constitution,  to  be  null,  void  and  of  no  effect. 

Third.  A  dispute  might  exist  between  two  colonies,  as  in  the  case  of 
boundaries  based  upon  an  agreement  reduced  to  writing  and  in  a  form  to 
be  passed  upon  by  the  courts,  interpreted,  and,  in  appropriate  cases,  specifically 
enforced  by  a  court  of  equity.  This  was  the  case  with  the  celebrated  agree- 
ment of  1732  between  the  sons  of  'William  Penn,  proprietors  of  Pennsylvania, 
on  the  one  hand,  and  Lord  Baltimore,  proprietor  of  Maryland,  on  the  other, 
regarding  the  boundary  between  the  provinces.  In  such  a  case,  the  Court  of 
Chancery  having  jurisdiction  of  the  parties  who  resided  in  England  could  and' 
actually  did  order  them  to  enforce  their  agreement,  although  it  affected  title 
lo  two  provinces  beyond  the  jurisdiction  of  the  Court  and  indeed  beyond  the 
seas. 

In  disputes  between  the  colonies  there  might  be  a  wrong  without  a  remedy 
unless  there  were  a  resort  to  a  common  authority,  for,  while  each  of  the  col- 
onies was  equal  and  independent  of  the  others,  they  were  all  dependent  upon 
the  Crown.  Therefore,  in  a  justiciable  question,  whether  it  be  between  the 
colonies  or  inhabitants  of  different  colonies,  resort  was  had  to  the  King  in 
Council,  for  the  reasons  quaintly  stated  in  the  petition  dated  July  17,  1678,  of 


102  THE    UNITED    STATES!    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Randall  Holden  and  John  Green  in  behalf  of  themselves  and  of  his  Maj- 
estys  oppressed  Subjects  the  Inhabitants  of  the  Towne  of  Warwick,  and  of 
other  adjacent  Places  belonging  to  his  Majestys  Colony  of  Road  Island  and 
Providence  Plantation  in  New-England,  Setting  forth  the  great  Miserys  and 
Calamitys  they  have  undergone  as  well  from  the  Government  of  the  Massa- 
chusets,  As  by  the  unjust  Proceedings  of  the  Commissioners  chosen  out  of 
the  Three  United  Colonys  of  New  Plymouth,  Massachuset  and  Connecticut, 
not  only  in  granting  and  awarding  to  one  William  Harris  of  Patuxet  the 
Lands  bought  and  improved  by  the  Petitioners  but  giving  him  great  Dam- 
ages, notwithstanding  the  Testimony  of  one  Mr.  Williams  the  first  Indian 
Purchaser  of  those  Lands  and  other  Materiall  Witnesses  on  the  Petitioners 
Behalf  as  by  the  Petition  more  at  large  appears.  .  .  .x 

The  petitioners,  however,  were  not  content  to  have  justice  done  in  their 
individual  cases.  They  put  the  ax  to  the  tree,  and  recommended  what  the 
framers  of  the  Constitution  of  the  States  did  a  century  subsequently,  not 
merely  for  New  England  but  for  the  original  thirteen  States  and  all  others 
composing  the  more  perfect  Union  under  the  Constitution.  After  pray- 
ing that  "  a  Stop  may  be  put  to  the  Proceedings  of  the  said  Commis- 
sioners," they  specifically  ask  "  that  for  determining  this  and  the  like  Differ- 
ences that  may  and  will  arise  between  Colony  and  Colony,  and  for  avoyding 
chargable  Appeals  from  those  remote  parts  His  Majesty  would  be  pleased 
to  settle  his  Royall  Authority  over  the  whole  country  of  New  England,  and 
erect  a  supreme  and  indifferent  Judicature  there." 

The  case  is  a  very  interesting  one  in  itself,  and  necessarily  makes  a  strong 
appeal  to  a  New  Englander,  inasmuch  as  it  reminds  him  of  the  New  England 
Confederation  established  in  1643,  and  then  in  effect.  The  Commissioners 
thereof  appear  to  have  passed  adversely  upon  the  case  of  the  petitioners,  so 
much  to  their  annoyance  that  they  carried  their  appeal  to  the  Privy  Council,  not 
only  in  their  own  behalf,  but  in  behalf  of  the  other  inhabitants  of  the  town, 
against  Massachusetts  and  the  Commissioners  of  the  New  England  Confed- 
eration, thus  involving  the  three  colonies  of  Massachusetts,  Plymouth  and 
Connecticut,  of  which  the  Confederation  was  then  formed. 
Suit  of  But  the  case  has  a  larger  interest  and  makes  an  appeal  to  Americans  with- 

v.  a  state  out  distinction,  for  it  seems  to  be  a  precedent  for  the  extension  of  the  judicial 

power  of  the  United  States  to  the  suit  of  a  citizen  of  a  State  against  another 
State  of  the  American  Union,  as  intimated  by  Chief  Justice  White,  in  deliver- 
ing the  opinion  of  the  Supreme  Court  in  Virginia  v.  West  Virginia,  (246  U. 
S.,  565),  decided  in  1918.  Therefore,  the  facts  and  the  proceedings  of  this 
interesting  controversy  are  stated  somewhat  at  length  and  in  detail. 
HoWen  The  petition  of  Messrs.  Holden  and  Green,  "  Deputves  for  the  Towne  of 

and  Green  L  L 

Petition  Warwick  and  Colony  in  Road  Island,"  represented  to  His  Majesty  in  council 

"  that  some  Persons  within  the  Corporation  of  the  Massachusetts  Bay  had 

1  Acts  of  the  Privy  Council,  Colonial  Series,  1613-1680,  Vol.  i,  p.  785,  §  1224. 


FURTHER    COLONIAL    PRECEDENTS  103 

by  a  printed  paper  affixed  in  publique  places  in  New  England,  layd  Claime  to 
a  Tract  of  Land,  called  the  Kings  Province,"  which  the  petitioners  claimed 
belonged  to  His  Majesty,  and  was  subject  to  the  jurisdiction  of  Rhode  Island. 
The  said  printed  paper  in  question  was  read  at  the  board,  and  a  copy  thereof 
was  ordered  to  be  sent  to  the  agents  for  Massachusetts,  who  were  directed  to 
attend  two  days  later,  "  to  shew  by  what  authority  or  Title  Simon  Brad- 
streete  Deputy  Governor,  or  other  Inhabitants  of  that  Colony  have  by  a 
printed  Paper  called  an  Advertisement  dated  at  Boston  the  30th  of  July  last, 
layd  Clayme  to  the  Land  of  Narragansett  and  Niantic  Countreyes,  called  the 
Kings  Province."  * 

From  the  record  of  the  Privy  Council  in  the  case,  dated  December  13, 
1678,  it  appears  that  the  agents  of  Massachusetts  complied  with  the  direction, 
and  declared  "  that  the  Government  of  the  Massachusetts  is  not  at  all  con- 
cerned in  this  clayme,  but  only  some  Inhabitants,  who  had  purchased  those 
Lands  from  the  Indyan  sachins." 

From  the  testimony  of  Messrs.  Holden  and  Green,  it  appears  that  they  had 
inhabited  the  region  in  question  for  above  forty  years;  that  the  sachems  and 
Indians  of  Narragansett  had  voluntarily  submitted,  with  their  peoples,  to 
the  government  of  his  late  Majesty,  Charles  I,  by  a  deed  dated  April  19,  1644, 
that  the  purchases  made  in  1659  by  one  Major  Atherton  and  others  of  the 
Massachusetts  Colony  were  null  and  void,  and  were  declared  to  be  so  by  His 
Majesty's  Commissioners  for  settling  the  Royal  authority  in  New  England, 
who  visited  Rhode  Island  in  1665,  and  who  ordered  the  purchasers  to  vacate 
the  lands,  and  declared  "  that  the  Magistrates  of  Rhode  Island  should  exer- 
cise the  authority  of  Justices  of  the  Peace  in  the  Narragansett  Country,  by 
them  called  the  Kings  Province  .  .  .  untill  his  Majestyes  pleasure  should  be 
farther  knowne."  2 

Without  losing  ourselves  in  a  wilderness  of  detail  concerning  these  bound- 
ary disputes,  it  is  sufficient  to  say  that  Connecticut  claimed  by  its  charter  of 
1662,  that  the  territory  in  question,  and  indeed  all  of  the  present  State  of 
Rhode  Island,  as  far  east  as  the  Narragansett  River,  "  comonly  called  Norro- 
gancett  Bay,  where  the  said  River  falleth  into  the  Sea  " ;  that  Rhode  Island, 
by  virtue  of  its  charter  of  1663  claimed  the  land  in  question  "  to  the  middle  or 
channel  of  a  river  there,  commonly  called  and  known  by  the  name  of  Pawca- 
tuck,"  thus  making  of  that  river  the  eastern  boundary  of  Connecticut,  and  by 
an  agreement  of  the  agents  of  Connecticut  and  Rhode  Island,  who  secured  their 
respective  charters,  to  harmonize  the  overlapping  grants  of  their  charters  by 
providing  in  the  Rhode  Island  charter  "  that  the  sayd  Pawcatuck  river  shall 
bee  alsoe  called  alias  Norrogansett  or  Narrogansett  river,  and  that  that  river 
in  our  late  graunt  to  Connecticut  Collony  mentioned  as  the  easterly  bounds  of 

i  Ibid.,  pp.  790-1,  §§  1233,  1234. 
"Ibid.,  p.  791,  §1234. 


104  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

that  Collony;"  that  Atherton  and  his  associates  sought  to  obtain  by  purchase 
and  by  mortgage,  the  lands  in  question,  to  be  held  by  them  either  in  Connecti- 
cut or  Massachusetts,  both  of  which  claimed  the  region,  but  not  under  Rhode 
Island ;  that  the  decree  of  the  Commissioners  set  aside  the  claims  of  Atherton 
and  his  associates,  and  gave  Rhode  Island  the  advantage  of  possession,  leav- 
ing the  question  of  title  to  be  adjusted  with  Connecticut,  as  it  eventually  was, 
by  the  decree  of  the  Privy  Council  in  1727,  and  with  Massachusetts  by  a  de- 
cree of  that  body  in  1746  and  by  a  decision  of  the  Supreme  Court  of  the 
United  States  exactly  a  century  later. 

But  to  return  to  the  complaints  of  Messrs.  Holden  and  Green.  On  the 
last  day  of  January,  1679,  the  Committee  of  the  Privy  Council  for  hearing 
appeals  presented  their  report,  from  which  it  appeared  that  the  trouble  was 
"  chiefly  occasioned  by  the  pretensions  and  proceedings  of  William  Harris  of 
Patuxet  in  New  England,  who  by  his  Petition  presented  vnto  Your  Majestie 
in  Councill  on  the  11th  of  June,  1675,  did  set  forth,  that  he  and  twelue  others 
neer  Forty  yeares  since  purchased  of  the  Indian  Princes  a  certain  parcell  of 
Land  called  Patuxet,  which  they  enjoyed  Peaceable  for  many  Yeares,  notwith- 
standing the  Seuerall  Claymes  of  the  Towne  of  Providence  and  of  the  Mas- 
sachuset  Colony,  vntill  John  Harrud  and  a  Party  with  him  forceably  entred 
vpon  part  of  those  Lands  vnder  pretence  of  a  purchase  from  other  Indians."  J 
Holden  in  his  petition  further  alleged  that  Harris  and  party  retained 
possession  of  a  part  of  the  lands  in  question  against  the  verdict  and  judgment 
of  court,  so  that  by  reason  of  the  contiguity  of  Patuxet  to  the  several  towns 
and  provinces,  Harris  and  his  partners  apprehended  "  no  Small  Danger  of 
loosing  their  Rights  by  the  encroachment  of  the  Towne  of  Providence,  War- 
wick, new  Plymouth  and  the  Massachusets  Colony." 

In  this  state  of  affairs,  in  August.  1675,  the  governors  of  Massachusetts, 
New  Plymouth,  Connecticut  and  Rhode  Island  were  directed  to  appoint 
"  some  able  honest  and  indifferent  Persons  to  join  with  each  other,  and  to 
cause  the  Differences  and  troubles  arising  to  the  Petitioner  and  his  Partners, 
concerning  the  Lands  of  Patuxet  to  be  brought  to  a  fair  Triall,  and  that  by  a 
just  indifferent,  and  vpright  Jury  in  like  manner  appointed,  all  might  be  fi- 
nally determined  according  to  Justice  and  without  delay."  ~ 

It  appears  that  the  commission  was  duly  issued  and  executed,  although  no 
report  of  the  proceedings  was  transmitted  to  the  Privy  Council,  inasmuch 
as  the  Committee  for  Hearing  Appeals  stated  that  the  first  knowledge  they 
had  of  it  was  obtained  through  the  petition  of  Messrs.  Holden  and  Green, 
from  which  the  Committee  likewise  obtained  its  knowledge  of  the  facts  and 
the  proceedings  under  the  commission.     These  two  gentlemen,  to  whom  the 

i    '  ts  of  the  Privy  Council,  Colonial  Series,  1613-1680,  p.  800,  §  1244. 
2  Ibid.,  p.  801. 


FURTHER    COLONIAL   PRECEDENTS  105 

territorial  integrity  of  Rhode  Island  is  very  largely  due,  set  forth  in  their  peti- 
tion that  in  pursuance  of  royal  letters  they  attended  the  time  and  place  ap- 
pointed by  the  commissioners,  the  major  part  of  whom  "  being  elected  out  of 
their  professed,  and  mortall  Ennemies,  and  ouervoted  those  of  Rhode  Island, 
granting  and  awarding  to  the  said  Harris  the  Lands  bought  and  improved  by 
them,  and  also  giuing  great  Damages,  notwithstanding  the  Testimony  of  one 
Mr.  [Roger]  Williams  the  first  Indian  purchaser  of  those  Lands,  and  other 
materials  Witnesses  in  that  behalf,  wherby  aboue  five  thousand  acres  of  land 
and  Meadows  belonging  to  the  Town  of  Warwick  and  parts  of  adjacent  were 
taken  away  from  them."  : 

It  appears,  further,  that  the  Commissioners  had  refused  to  suspend  their 
sentence  at  the  request  of  Messrs.  Holden  and  Green,  whereupon,  taking  ad- 
vantage of  their  charter,  they  appealed  to  His  Majesty,  and  undertook  their 
mission  to  England,  "  to  supplicate  your  Majesties  Royall  interposition  and 
settlement  of  their  Country,  which  by  reason  of  the  said  different  lawes  and 
formes  of  Government  in  the  seuerall  Colonies,  would  not  otherwise  be  ac- 
complished." 2 

The  voyage  to  England  apparently  was  noised  abroad,  because  the  Commit- 
tee states  that,  on  the  15th  of  October,  1678,  several  months  after  the  filing 
of  the  Holden  and  Green  petition,  a  letter  was  received  "  from  Mr.  Leveret 
Gouernor  of  your  Majesties  Colony  of  the  Massachusets  .  .  .  enclosing  a  Re- 
turn made  vnto  him  by  the  Comissioners  of  the  Court  constituted  by  Virtue 
of  your  Majesties  said  Letters  upon  the  Case  of  William  Harris,  which  hav- 
ing been  communicated  vnto  vs.  Wee  found  it  to  contein  the  proceedings  of 
the  said  Court."  From  Governor  Leverett's  report  it  appears  that  "  two  Com- 
missioners from  each  of  the  respective  Gouernments  of  your  Majesties  four 
Colonies  of  New  England,"  appeared  at  Providence  Plantation  in  the  Colony 
of  Rhode  Island  on  the  3d  of  October,  1677,  who,  to  quote  the  record,  "  hav- 
ing Duely  Chosen  twelve  Jury  men,  adjourned  to  the  17th  of  November  fol- 
lowing, that  so  there  might  be  timely  Summons  given  to  such  as  the  plantifs 
or  Demandents  Desired  to  Commence  their  Action  against;"  that  the  jury 
rendered  several  verdicts  in  favor  of  William  Harris  and  two  of  his  partners 
who  had  joined  with  him;  that  a  verdict  was  given  for  Harris  and  Field 
against  the  town  of  Warwick  and  the  purchasers  "  of  the  said  Land  called 
Warwick;"  that  the  verdict  was  accepted  by  the  court  with  allowance  of 
costs;  that  the  court  ordered  the  town  of  Providence  "  to  choose  able  men,  to 
run  such  a  Dividing  lyne  as  might  distinguish  and  mark  out  the  Lands  claimed 
by  William  Harris  and  Partners  "  ;  that  on  June  18,  1678,  the  draft  of  the  line 
was  presented  to  but  not  accepted  by  the  court,  inasmuch  as  it  did  not  seem  to 

>  Ibid.,  p.  801. 
2  Ibid. 


106  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL    ORGANIZATION 

that  body  to  be  "  according  to  the  true  meaning  of  the  Verdict " ;  that,  after 
much  debate,  the  court,  deeming  it  "  most  satisfactory  that  the  former  Jury 
themselves  should  explain  their  owne  meaning  in  their  Verdict,"  summoned 
them  to  appear  at  their  next  adjournment  on  the  1st  of  October  following.1 
At  this  stage  an  unexpected  difficulty  presented  itself,  inasmuch  as,  to 
quote  the  language  of  the  record,  "  one  of  the  Commissioners  of  the  Colony 
of  Connecticut  absenting  himself  the  next  Day  after,  gaue  occasion  to  the 
Commissioners  of  Rhode  Island  to  with  Draw  themselves  from  the  Court." 
This  did  not,  however,  daunt  the  rest  of  the  commissioners,  who,  "  notwith- 
standing continued  their  meeting,  and  the  Gentlemen  of  the  Jury  likewise 
made  their  appearance,  except  the  three  appointed  by  Rhode  Islande,  who 
being  Come  the  next  Day  refused  to  act  as  to  the  Explanation  of  their  former 
Verdict,  alleaging  that  they  had  with  the  rest  of  the  Jury,  given  in  their  Verdict 
vpon  Oath,  which  was  accepted  by  the  Court  and  they  Dismist,  And  therefore 
would  not  concerne  themselues  farther  about  it."  The  other  jurymen,  how- 
ever, not  suffering  from  the  scruples  of  their  brethren  from  Rhode  Island, 
whose  land  was  in  question,  "  gaue  in,  vnder  their  hands  an  explanation  of 
what  they  intended  in  their  former  Verdict,  which  the  Commissioners  con- 
cerned to  be  that  lyne,  which,  according  to  Verdict  of  Jury  and  Justice  ought 
to  be  run,  and  possession  accordingly  given  vnto  the  Plantifs,  at  least  vntil  his 
Majesties  pleasure  should  be  further  knowne."  The  procedure,  however, 
worried  the  members  of  the  court,  for  the  record  continues: 

Yet,  forasmuch  as  one  of  the  Commissioners  was  absent,  and  two  being 
present,  Did  oppose  the  said  explanation,  and  one,  or  more  hesitated  about 
the  granting  Execution ;  The  said  Commissioners  thought  fit  to  leaue  the 
finall  Determination  of  this  whole  affair  vnto  your  Majestic"2 

Upon  the  receipt  of  the  report  from  Governor  Leverett,  the  Committee 
ordered  a  copy  thereof  to  be  delivered  to  Messrs.  Holden  and  Green,  who 
made  the  following  pertinent  observations  upon  it:  1st,  that  the  complaint  of 
William  Harris  concerned  the  lands  of  Patuxet,  not  the  lands  of  Warwick, 
which  were  not  part  thereof,  and  that  the  court  therefore  had  no  power  to 
determine  the  ownership  of  any  other  lands  than  those  of  Patuxet;  2d,  that 
the  town  of  Warwick  publicly  protested  in  open  court  against  the  proceedings 
of  the  Commissioners  and  claimed  an  appeal  to  His  Majesty  in  council,  which 
the  majority  of  the  commission  refused  to  grant,  "  Saying  it  would  be  of  ill 
Consequence  to  the  Country  to  allow  of  any  appeal  to  your  Majestie;"  3d,  that 
from  the  oath  of  Roger  William's,  who  purchased  the  lands  from  the  Indians 
which  Harris  and  his  partners  then  possessed,  it  appeared  "  that  the  Lands 
claimed  by  Harris  of  the  Town  of  Warwick  were  nither  bought  by  him  of 

1  Acts  of  Privv  Council,  Colonial  Series,  1613-1680,  p.  801. 
-Hid.,  p.  803." 


FURTHER    COLONIAL    PRECEDENTS  107 

the  Indian  Sachims  or  by  him  sold  vnto  Harris  or  Partners,  nor  is  there  men- 
tion of  those  Lands  in  any  Deed  of  Sale ;"  4th,  that  the  line  run  by  the  town  of 
Providence,  "  whereof  Harris,  and  Field  are  Inhabitants  was  accepted  by  the 
Commissioners  and  is  according  to  Right;"  and  5th,  that  the  line  run  was  not 
satisfactory  to  the  Commissioners  themselves  who  had  run  it,  in  that  they  had 
been  obliged  to  submit  the  whole  matter  to  his  Majesty  in  council.1 

Therefore,  Messrs.  Holden  and  Green  prayed  that  the  original  line  be 
confirmed,  or  that  matters  remain  "  in  the  first  state  "  until  Harris  and  his 
partners  should  show  cause  to  the  contrary  to  His  Majesty.  "  In  Consider- 
ation of  the  Complainants  humble  appeale  vnto  your  Majestie  for  Justice 
(which  your  Majestie  in  like  Cases  will  alwaies  allow  of  and  encourage)  to- 
gether with  the  reasons,  and  Euidences  Offered  by  them  in  Justification  of  their 
Right,  and  present  possessions  which  do  not  appear  to  be  any  part  of  the 
Lands  of  Patuxet,  which  only  by  your  Majesties  Commission  were  to  be 
brought  to  a  tryall,"  the  Committee  for  Hearing  Appeals  recommended  that 
"  Your  Majestie  do  therfore  Signifie  Your  Royall  Pleasure  vnto  William 
Harris,  and  all  others  whom  it  may  concerne  that  the  Inhabitants  of  the 
Towne  of  Warwick  be  not  Disturbed  in  the  quiet  and  peaceable  enjoyment  of 
the  Lands  claymed  and  possessed  by  them  the  Inhabitants  of  the  Town  of 
Warwick,  And  that  all  things  relating  therevnto  remain  in  the  same  state  they 
were  in  before  the  meeting  of  the  said  Commissioners  vntill  the  said  William 
Harris  or  Partners  shall,  in  the  Lawfull  Defence  of  their  Right  before  your 
Majestie  in  Councill  make  out  a  Sufficient  title  to  the  said  Lands."  2 

The  report  of  the  Committee  was,  as  usual  in  such  cases,  approved  and 
orders  given  accordingly  for  the  inhabitants  of  Warwick.  As  regards  the 
claims  of  Harris  to  lands  situated  within  Patuxet,  concerning  which  he  went 
to  England  to  petition  the  Privy  Council,  "  which  only  by  his  Majesties  Com- 
mission were  to  be  brought  to  a  tryall,"  the  commissioners  made  a  favorable 
report,  and  it  was  therefore  ordered  that  Harris  and  his  partners  be  peace- 
ably and  quietly  possessed  thereof. 

The  order  of  the  King  affirming  the  report  of  the  Committee  was  dated 
January  2,  1679,  but  the  matter  did  not  rest  here,  as  it  appears  from  the  record 
of  the  Privy  Council  under  date  of  July  2  of  the  same  year : 

Whereas  the  said  Holden  and  Green  were  no  sooner  departed,  but  the 
Petitioner  William  Harris  hath  made  his  Appearance,  beseeching  your  Ma- 
jesty to  take  such  Course  as  might  finally  determine  the  Matters  complayned 
of  by  him.3 

The  Committee  was  very  naturally  of  the  opinion  "  That  by  reason  of  the 
distance  of  Places  and  Absence  of  the  Parties  it  wilbe  a  matter  of  too  great 

i/fci'rf.,  pp.  803,  804. 
2  Ibid.,  pp.  804-5. 
a  Ibid.,  p.  849,  §  1291. 


108        mi:  united  states:  a  study  in  international  organization 

difficulty  for  your  Majesty  to  give  such  Judgment  therein  as  may  equally  de- 
cide their  respective  pretensions,"  and  suiting  the  action  to  the  words,  they 
recommended,  for  the  reasons  stated  by  them,  the  following  procedure  which 
in  their  opinion  should  be  adopted  as  it  was  calculated  to  do  justice  towards 
the  parties : 

And  whereas  the  said  Holden  and  Green  did  offer  their  Exceptions  against 
the  Colonies  of  the  Massachusets  and  Conecticut  upon  divers  past  differences 
between  them,  And  that  on  the  other  side  the  Petitioner  William  Harris  thinks 
he  has  just  cause  to  except  against  the  Colony  of  Rhode  Island  as  being  par- 
ticularly interessed  in  the  present  Controversy.  Wee  therefore  humbly  offer. 
That  your  Majestys  Royall  Commands  be  again  sent  to  the  Governor  and 
Magistrates  of  your  Colony  of  New  Plymouth,  Authorizing  and  requiring 
them  to  call  before  them  the  said  Randall  Holden  and  John  Green,  and  other 
Persons  in  whose  behalf  they  have  lately  appealed  unto  your  Majesty  And 
having  in  due  manner  examined  the  Pretensions  of  the  said  Harris  unto  the 
Lands  possessed  by  them,  do  returne  unto  your  Majesty  a  particular  State 
thereof  and  their  opinions  thereupon  with  all  convenient  speed. 

And  whereas  your  Majesty  hath  already  thought  fit  to  Order,  That  the 
said  William  Harris  and  Partners  be  peacably  and  quietly  possessed  of  the 
Lands  of  Patuxet  adjudged  unto  them  by  the  first  and  Three  last  Verdicts 
given  in  pursuance  of  your  Majestys  late  Commission,  Wee  further  offer  That 
the  Governor  and  Magistrates  of  the  Colony  of  Rhode  Island,  to  whose 
Jurisdiction  the  said  lands  apperteyne  be  strictly  charged  and  required  to  put 
the  said  William  Harris  and  Partners  into  the  quiet  possession  thereof,  and 
to  take  care. that  Execution  be  given  for  their  Dammage  and  Costs  allowed 
by  the  said  Verdicts  and  Judgments  of  Court,  within  the  space  of  Three 
Moneths  at  furthest  after  the  Receipt  of  your  Majesty's  Comands,  And  that 
in  default  thereof,  sufficient  Powers  may  be  sent  unto  the  Neighbouring  Col- 
ony of  New  Plymouth  to  cause  the  same  to  be  duly  executed  without  delay.1 

Harris  returned  to  Rhode  Island  in  September,  1679,  and  was  victorious  in 
the  rehearing  against  Warwick. 
Judicial  As  far  as  we  are  concerned,  the  dispute  may  well  end  here,  inasmuch  as 

Precedents  r  J 

the  present  purpose  is  not  so  much  to  show  the  decision,  but  the  method  of 
reaching  it.  where  representatives  of  different  colonies  claimed  land  within 
another,  where  representatives  of  one  and  the  same  colony  claimed  lands  to 
which  adjoining  colonies  laid  claim,  and  where,  finally,  the  claim  of  land 
within  one  colony  is  based  upon  title  alleged  to  rest  in  another  and  different 
colony.  For  all  of  which  disputes  this  case,  in  its  different  phases  may  be 
cited  as  a  precedent  for  the  jurisdiction  in  these  matters  conferred  upon  the 
Supreme  Court  of  the  United  States  by  the  framers  of  the  Constitution  of 
the  more  perfect  Union.  However,  it  may  perhaps  be  permissible  to  conclude 
the  analysis  of  this  interesting  law-suit  with  the  statement  that  after  obtaining 
judgment  against  Warwick,  the  litigious  Harris  set  sail  for  England  in  a  ves- 
sel very  inappropriately  called   The   Unity,   in  order  to  appear  before  the 

1  Acts  of  the  Privy  Council,  Colonial  Series,  1613-1680,  pp.  849-50. 


FURTHER    COLONIAL   PRECEDENTS  109 

Privy  Council  not  only  in  propria  persona  but  as  the  agent  of  Connecticut 
and  of  Major  Atherton  and  his  associates  in  their  various  pretensions  to  the 
Narragansett  region.  On  the  voyage  thither  he  was  taken,  in  January,  1680, 
by  an  Algerian  pirate  and  held  in  slavery  for  ransom.  When  he  was  eventu- 
ally released  upon  its  payment,  he  died  in  London  within  a  few  days  after  his 
arrival,  leaving  it  to  the  Privy  Council  to  decide  in  1727  and  1746  the  claims 
which  he  had  espoused,  adverse  to  his  contentions  and  in  favor  of  the 
stout  little  colony  of  Rhode  Island,  of  which  he  was  an  unworthy  resi- 
dent. 

Passing  by  the  many  cases  of  appeal  from  local  courts  to  the  Privy  Council 
involving  a  denial  or  miscarriage  of  justice,  which  could  and  probably  would 
be  taken  in  ordinary  course  from  a  lower  to  a  court  of  last  resort,  inasmuch 
as  they  neither  furnished  a  precedent  nor  throw  light  upon  the  judicial  power 
of  the  United  States,  the  three  categories  of  appeals  will  be  considered,  and 
in  some  little  detail,  as  they  are  apparently  the  source  of  that  jurisdiction 
conferred  in  first  instance  upon  the  Congress  by  the  ninth  of  the  Articles  of 
Confederation  and  upon  the  Supreme  Court  of  the  United  States  by  twelve  of 
the  original  thirteen  States  in  creating  the  more  perfect  Union. 

First  as  to  boundary  disputes  between  the  colonies  in  the  absence  of  an  p°supnudtery 
enforcible  agreement  between  them.     Instead  of  discoursing  in  general  and  in   New  York 
the  abstract  upon  the  nature  and  jurisdiction  of  the  Privy  Council  and  the  j"rseyew 
Lords  Commissioners  of  Trade  and   Plantations,  it  is  advisable  to  take  a 
specific  and  concrete  case,  to  follow  it  from  the  beginning  to  the  end,  and 
thus,  as  it  were,  let  it  tell  its  own  story.     For  this  purpose  the  long  drawn  out 
controversy  between  New  York  and  New  Jersey  is  chosen,  not  only  because 
it  is  complete  in  itself,  but  because  it  states  perhaps  better  than  any  other  the 
ordinary  course  of  procedure  in  such  disputes. 

On  December  23,  1717,  an  Act  of  the  Assembly  of  the  Colony  of  New  From 

Negotiation 

York  called  attention  to  the  fact  that :  «°  Judicial 


Procedure 


"The  Partition  Lines  between  this  Colony  and  the  Colony  of  .  .  .  New- 
Jersey,  are  necessary  to  be  known  and  ascertained,  in  order  that  such  of  the 
Inhabitants  of  this  Colony,  whose  Estates  or  Habitations  are  adjacent  to, 
and  border  on  the  said  Partition  Lines,  may  peaceably,  and  without  Molesta- 
tion, enjoy  the  Fruits  of  their  Industry,  and  that  the  Government  may  not  be 
defrauded  of  the  publick  Taxes  that  may  arise  and  become  due  from  the  said 
Inhabitants,  by  their  pretending  that  they  do  not  dwell  within  this  Col- 
ony. .  .  .'" 

For  this  purpose  money  was  appropriated  to  "  be  applyed  to  defray  that 
part  of  the  Charge  of  Running,  Surveying  and  ascertaining  the  Partition  Line 
Limitt  and  Boundary  between  this  Colony  and  the  Colony  of  Nczv  Jersey 
which  may  be  requisite  for  this  Colony  to  pay  ...  in  such  parts  &  propor- 

1  Laws  of  New-York  from  the  Year  i6gr,  to  1751,  inclusive  (1762),  p.  125. 


110  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

tions  as  shall  be  requisite  for  that  Service,  when  the  Survey  ascertaining  and 
Runing  of  the  said  Line  Limitt  and  Boundary  shall  be  began  and  Carryed  on 
by  the  mutual  Consent  and  agreement  of  his  Excellency  &  Councill  of  this 
Province  and  the  Proprietors  of  the  soil  of  the  said  Province  of  New  Jersey 
.  .  .  which  Lines  being  Run  ascertained  and  agreed  on  by  the  Surveyors  and 
Commissioners  of  each  Colony,  as  afo're  said,  shall  forever  thereafter  be 
Deemed  taken  be  and  remain  as  the  partition  Line  Limitt  and  Boundary  of 
this  Colony,  and  all  bodys  Corporate  and  Politick,  and  all  other  persons  what- 
soever within  this  Province,  shall  be  forever  Concluded  thereby." 

On  March  27,  1719,  the  Province  of  New  Jersey  passed  an  Act  "  for  run- 
ning and  ascertaining  the  Division  Line  betwixt  this  Province  and  the  Province 
of  New- York,"  and  after  stating  the  existence  of  disputes  and  controversies 
between  the  two  colonies,  as  in  the  case  of  the  New  York  Act,  provided  for 
the  appointment  of  two  or  more  commissioners  with  the  Surveyor  General 
o'f  the  Province  of  New  Jersey,  by  the  Governor  of  New  Jersey,  by  and  with 
the  consent  of  the  Council,  "  empowered  by  a  Commission  under  the  Great 
Seal  of  this  Province,  to  join  with  such  Commissioners  and  Surveyors  as 
shall  be  appointed  on  the  Part  and  Behalf  of  the  Province  of  New-York," 
to  "  Run,  Survey,  Agree  on  and  Ascertain  the  said  Line,  Limits  and  Bound- 
aries betwixt  this  Province  of  New-Jersey,  and  the  said  Province  of  New- 
York,  according  to  the  true  Limits  thereof,  as  near  as  conveniently  can  be 
done."  And  it  was  further  provided  that  the  line  drawn  by  the  commis- 
sioners of  the  two  provinces  in  accordance  with  their  commissions  was  to  be 
considered  the  boundary  line  between  the  two  provinces  "  any  Law,  Usage, 
Custom  or  Pretence  to  the  contrary  in  any  wise  notwithstanding."  * 

In  1719,  pursuant  to  the  Acts  of  New  York  and  Nfew  Jersey,  Governor 
Hunter  of  the  former  colony  issued  commissions  to  two  commissioners  and  the 
Surveyor  of  the  province  to  meet  with  the  two  commissioners  and  the  Sur- 
veyor General  of  the  province  of  New  Jersey,  "  in  Order  to  find  out  and  De- 
termine which  of  the  Streams  is  the  Northermost  Branch  of  the  River  Dela- 
ware, And  that  then  when  such  Branch  is  so  Discovered  that  the  said  Sur- 
veyor or  Surveyors  Carefully  According-  to  the  best  of  their  Knowledg  and 
understanding  Discover  and  find  out  that  Place  of  the  said  Northermost 
Branch  of  Delaware  River  that  Lyes  in  the  Latitude  of  fforty  one  Degrees  and 
fforty  Minutes  which  is  the  North  Partition  Point  of  New  York  and  New  Jer- 
sey," and  to  "  Discover  that  part  on  the  West  side  of  Hudson's  River  that 
Lyes  in  the  fforty  One  Degree  of  Latitude,"  and  having  fixed  these  two  points, 
to  run  a  straight  line  between  them,  "  which  line  being  so  Run  and  Marked 
out  is  forever  hereafter  [according  to  the  Acts  of  the  two  Colonies]   to  be 

1  The  Acts  of  the  General  Assembly  of  the  Province  of  New  Jersey  (1752),  Vol.  i,  pp.  77-8. 


FURTHER  COLONIAL  PRECEDENTS  111 

Deemed  taken  be  and  Remaine  as  the  Partition  Line  Limitt  and  Boundary 
between  our  said  Provinces  of  New  York  and  New  Jersey."  1 

By  an  indenture  of  July  25,  1719, -  the  commissions  appointed  by  the  two 
colonies  certified  that  the  point  of  the  Delaware  had  been  located,  but  owing 
to  disputes  which  arose  between  the  colonies,  the  commission  did  not  com- 
plete its  work,  and  the  question  remained  unsettled  until  it  was  taken  up  anew 
by  an  Act  of  New  Jersey  of  February  18,  1748,  by  virtue  whereof  the  bound- 
ary line  between  the  two  provinces  was  to  be  drawn  in  pursuance  of  the  Acts 
of  the  two  colonies,  of  1717  and  1719,  if  New  York  consented  thereto,  and 
if  not,  by  commissioners  on  the  part  of  New  Jersey.3  Because  of  protests 
on  the  part  of  New  York,  this  Act  containing  a  suspending  clause  which  re- 
quired the  approval  of  the  Crown  was  disallowed  by  the  King  in  Council  upon 
the  recommendation  of  the  Lords  of  Trade  and  Plantation  dated  July  18, 
1753.4  This  recommendation,  setting  forth  the  proceedings  actually  had  in 
this  case  and  those  which  should  have  been  had,  is  as  follows. 

In  the  first  place  the  Board  of  Trade  states  that  two  considerations  arise 
upon  the  New  Jersey  act :  First,  "  such  as  relate  to  the  principles  upon  which 
it  is  founded";  second,  "such  as  relate  to  the  Transactions  and  Cir- 
cumstances which  accompany  it."  Under  the  first  heading  the  Board  calls 
attention  to  the  fact  that  the  act  of  New  Jersey  is  the  attempt  of  that  province 
to  secure  the  determination  of  a  matter  of  specific  interest  to  New  York  and 
of  general  interest  to  the  Crown.     Thus : 

AS  to  the  first,  it  is  an  Act  of  the  Province  of  New  Jersey,  interested  in 
the  Determination  of  the  limits,  and  in  the  consequential  Advantages  to  Arise 
from  it. 

THE  Province  of  New  Jersey  in  its  distinct  and  separate  Capacity  can 
neither  make  nor  Establish  for  deciding  differences  between  itself  and  other 
parties  concerned  in  Interest. 

THE  Established  Limits  of  its  Jurisdiction  and  Territory  are  such  as  the 
Grants  under  which  it  claims  have  assigned.  If  those  Grants  are  doubtful 
and  differences  Arise  upon  the  Construction  or  upon  the  matter  of  them,  We 
humbly  Apprehend  that  there  are  but  two  methods  of  deciding  them,  either 
by  the  concurrence  of  all  parties  Concerned  in  Interest  or  by  the  regular  and 
legal  Forms  of  Judicial  proceedings,  And  it  appears  to  us,  that  the  legal 
method  of  proceeding  must  be  derived  from  the  Immediate  Authority  of  the 
Crown  itself,  signified  by  a  Commission  from  your  Majesty  under  the  Great 
Seal  the  Commission  of  subordinate  officers  and  of  derivative  powers  being 
neither  Competent  nor  adequate  to  such  purposes.  To  judge  otherwise  would 
be,  as  We  humble  conceive,  to  set  up  ex  parte  Determination  and  Incompetent 
Jurisdictions  in  the  place  of  Justice  and  legal  authority. 

1  Report  of  the  Regents  of  the  New  York  University  on  the  Boundaries  of  the  State  of 
New  York,  prepared  by  D.  J.  Pratt,  1884,  Vol.  ii,  pp.  608,  609. 

2  Documents  Relating  to  the  Colonial  History  of  New  Jersey,  ed.  Wm.  A.  Whitehead,  1882, 
Vol.  iv,  p.  394.     Also,  Pratt,  Boundaries.  Vol.  ii,  pp.  611-614. 

3  New  Jersey  Lazvs  (Allinson's  Compilation),  p.  172. 

4 Documents  Relating  to  the  Colonial  History  of  New  Jcrsev.  ed.  Win.  A.  Whitehead, 
1882,  Vol.  iii,  part  1,  pp.  144-150.    Also,  Pratt,  Boundaries,  pp.  656-9. 


112  THE   UNITED    STATES!    A   STUDY   IN    INTERNATIONAL   ORGANIZATION 

IF  THE  ACT  OF  NEW  JERSEY  cannot  conclude  other  parties,  it  can- 
not be  Effectual  to  the  Ends  proposed :  and  that  it  would  not  be  Effectual  to 
Form  an  absolute  Decision  in  this  Case,  the  Legislature  of  that  province 
seems  Sensible,  while  it  endeavours  to  leave  to  your  Majestys  Determination 
the  Decision  of  one  point  relative  to  this  matter  and  of  considerable  Impor- 
tance to  it,  which  proves  your  Majesty  cannot  derive  from  them,  without 
their  having  the  Power  to  Establish  the  thing  itself  without  the  Assistance 
of  your  Majesty. 

And  for  the  reasons  stated,  the  Board  concludes  that  "  the  present  Act 
without  the  Concurrence  of  other  parties  concerned  in  Interest,  is  unwarrant- 
able and  ineffectual."  * 

Under  the  second  heading,  the  Board  of  Trade  calls  attention  to  the  fact 
"that  the  Crown,  on  the  one  hand,  and  the  provinces  of  New  York  and  New 
Jersey,  on  the  other,  are  interested  parties,  and,  as  is  to  be  expected,  the  in- 
terest of  the  Crown  is  first  stated.  In  the  first  place  the  Board  mentions  that 
the  Crown  was  not  a  party  to  the  negotiations  and  agreements  between  the 
two  provinces  for  the  settlement  of  their  dispute,  and,  because  of  this  lack  of 
confirmation,  holds  that  the  proceedings  are  void.  In  the  next  place,  the 
interests  of  the  Crown  are  specifically  set  forth.     Thus : 

With  regard  to  the  Transactions  on  the  part  of  New  York,  We  beg  leave 
to  observe,  that  whatever  agreements  have  been  made  formerly  between  the 
two  provinces  for  settling  their  Boundaries  whatever  Acts  of  Assembly  have 
passed,  and  whatever  Commissions  have  been  issued  by  the  respective  Gov- 
ernors and  Governments  the  proceedings  under  them  have  never  been  per- 
fected, the  work  remains  unfinished,  and  the  Disputes  between  the  two  prov- 
inces Subsist  with  as  much  Contradiction  as  ever.  But  there  is  a  Circum- 
stance which  appears  to  us  to  have  still  more  weight,  namely  that  those 
Transactions  were  never  properly  warranted  on  the  part  of  the  CROWN: 
The  CROWN  never  participated  in  them,  and  therefore  cannot  be  bound 
with  respect  to  its  Interests  by  proceedings  so  authorized.2 

In  disputes  of  this  kind,  the  interests  of  the  Crown  are  said  to  be  three- 
fold:  First,  of  "Sovereignty  respecting  mere  Government;"  second,  "of 
Seigneurie  which  respects  Escheats  and  Quit  Rents;"  third,  "of  property  as 
relative  to  the  soil  itself,  which  last  Interest  takes  place  in  such  Cases  where 
either  Your  Majesty  has  never  made  any  Grants  of  the  Soil  or  where  such 
Grants  have  by  Actual  Escheats  reverted  to  Your  Majesty."  On  this  phase 
of  the  subject  the  Board  says : 

WITH  regard  to  the  first  of  these  Interests  viz,  that  of  Sovereignty,  it  has 
been  alleged  to  Us  in  Support  of  the  Act,  that  it  is  not  materially  Affected  by 
the  Question,  as  both  provinces  are  under  Your  Majestys  immediate  direction 
and  Government :  But  they  stand  in  a  very  different  light  with  respect  to  Your 
Majestys  Interests  in  the  Quit  Rents  and  Escheats,  in  both  which  articles  the 
Situation  of  the  two  provinces  appears  to  us  to  make  a  very  material  altera- 
tion.   For  altho'  the  province  of  New  Jersey  is  not  under  regulations  of  pro- 

1  Documents  Relating  to  the  Colonial  History  of  New  Jersey,  Vol.  viii,  part  1,  pp.  145-6. 
=  Ibid.,  p.  146. 


FURTHER    COLONIAL    PRECEDENTS  113 

priety  or  Charter  with  respect  to  its  Government,  yet  it  is  a  proprietary  prov- 
ince with  respect  to  the  Grant  &  Tenure  of  its  Territory,  and  consequently 
as  New  York  is  not  in  that  predicament,  the  Determination  of  the. Boundary  in 
prejudice  to  that  province  will  affect  your  Majestys  Interest  with  respect  to 
the  Tenure  of  such  Lands  as  are  concerned  in  this  question,  it  being  evident 
that  whatever  Districts  are  supposed  to  be  Immediately  held  of  Your  Majesty 
in  New  York,  by  being  Supposed  to  be  Included  in  the  Limits  of  New  Jersey, 
will  Immediately  pass  to  the  proprietors  of  that  province  and  be  held  of  them; 
by  which  means  Your  Majesty  would  be  deprived  of  your  Escheats  and  the 
Quit  Rents  would  pass  into  other  Hands. 

TO  obviate  this  objection  it  has  been  alledged  that  the  Crown  has  already 
made  absolute  Grants  of  the  whole  Territory,  that  can  possibly  come  in 
Question  under  the  Determination  of  this  Boundary,  and  reserved  only 
triHing  and  Inconsiderable  Quit  Rents  on  these  Grants.  But  this  Argument 
does  not  seem  to  us  to  be  conclusive,  since  it  Admits  an  Interest  in  your 
Majesty,  the  Greatness  or  Smallness  of  which  is  merely  accidental,  and  there- 
fore does  not  affect  the  Essence  of  the  Question,  And  we  beg  leave  farther 
to  observe,  that  in  the  Case  of  Exorbitant  Grants  with  Inconsiderable  Quit 
Rents  and  where  consequently  it  may  reasonably  be  Supposed  that  the  Crown 
has  been  deceived  in  Such  Grants  by  its  Officers,  Your  Majestys  Contingent 
Right  of  property  in  Vertue  of  your  Seigneurie  seems  rather  to  be  enlarged 
than  diminished.1 

Because  of  these  interests  of  the  Crown,  the  Board  came  to  the  con- 
clusion which  would  seem  to  be  inevitable  in  the  premises,  that  neither 
province  should  have  entered  into  an  agreement  with  the  other,  much  less 
have  appointed  a  commission  to  determine  the  boundaries  without  permission 
in  advance  and  without  confirmation  of  their  acts  by  the  Crown.  Taking  up 
the  question  of  confirmation  the  Board  observed: 

But  it  has  been  further  urged  that  the  Crown  has  since  Confirmed  these 
Transactions,  either  by  previous  Declarations  or  by  Subsequent  Acquiescence, 
and  consequently  participated  in  them  so  far  as  to  conclude  itself.  We  shall 
therefore  in  the  next  place  beg  leave  to  Consider  the  Circumstance  Urged  for 
this  purpose. 

IT  has  been  alledged  that  the  Crown,  by  giving  Consent  to  the  aforesaid 
Act  passed  in  New  York  in  1717  for  paying  and  discharging  several  Debts 
due  from  that  Colony  &c,  included  and  bound  itself  with  respect  to  the  subse- 
quent proceedings  had  under  the  Commission  issued  by  Governor  Hunter. 

In  this  connection  the  Board  states  that  the  approval  of  the  Act  could  not 
be  said  to  be  an  approval  of  the  commission,  for  which  a  small  sum  of  money 
was  appropriated,  and  the  proceedings  to  be  had  under  it,  which  could  only 
derive  their  validity  from  specific  approval  in  advance  and  confirmation  after 
completion.  It  may  be  that  the  approval  of  the  act,  including  this  item,  justi- 
fied Governor  Hunter  in  the  belief  that  he  was  authorized  to  appoint  the  com- 
mission, inasmuch  as  the  moneys  had  been  appropriated  for  it,  and  to  enter 
into  negotiations  with  New  Jersey  on  the  basis  of  the  commission.     But  an 

i  Ibid.,  Vol.  viii,  part  1,  pp.  147-8. 


114        THE  united  states:  a  study  in  international  organization 

examination  of  the  text  of  the  act,  which  is  a  revenue  bill  of  enormous  length, 
in  which  this  clause  is  an  item  as  difficult  to  find  as  is  a  needle  in  a  haystack, 
will  assuredly  cause  anybody  who  consults  it  not  to  sit  in  judgment  on  the 
Board  of  Trade  for  what  might  otherwise  be  considered  as  an  inadvertence, 
oversight  or  slip. 

The  Board  then  takes  up  and  discusses  the  subsequent  approval  of  an  agree- 
ment entered  into  between  New  York  and  Connecticut  for  the  settlement  of 
their  boundaries,  which  had  been  pressed  upon  its  attention  as  a  precedent 
justifying  the  present  action,  regarding  which  the  Lords  Commissioners  say: 

WE  further  beg  leave  humbly  to  represent  to  Your  Majesty,  that  the  lines 
of  partition  and  Division  between  Your  Majestys  province  of  New  York 
and  Colony  of  Connecticut  having  been  run  and  Ascertained  pursuant  to  the 
Directions  of  an  Act  passed  at  New  York  for  that  purpose  in  the  Year  1/19 
and  Confirmed  by  his  late  Majesty  in  1723,  the  Transactions  between  the  said 
province  and  Colony  upon  that  occasion  have  been  alledged  to  be  Similar  to, 
and  urged  as  a  precedent  and  even  as  an  approbation  of  the  matter  now  in 
Question.  But  we  are  humbly  of  opinion,  that  the  two  Cases  are  materially 
and  essentially  different.  The  Act  passed  in  New  York  in  1719  for  running 
and  Ascertaining  the  Lines  of  partition  and  Division  between  that  Colony  and 
the  Colony  of  Connecticut  Recites,  "  That  in  the  Year  1683  the  Governor  and 
"  Council  of  New  York  and  the  Governor  and  Commissioners  of  Connecticut 
"  did  in  Council  conclude  an  Agreement  concerning  the  Boundaries  of  the 
"  two  Provinces :  that  in  Consequence  of  this  Agreement  Commissioners  and 
"  Surveyors  were  appointed  on  the  part  of  each  Government  who  did  actually 
"  agree,  Determine  and  ascertain  the  Lines  of  partition,  marked  out  a  Certain 
"  part  of  them  and  fixed  the  point  from  whence  the  remaining  parts  should 
"  be  run,  that  the  several  things  agreed  on  and  done  by  the  said  Commissioners 
"  were  ratified  by  the  respective  Governors,  entered  on  Record  in  each  Colony, 
"  and  in  March  1700  approved  and  Confirmed  by  order  of  King  William  the 
"  third  in  His  privy  Council  and  bv  his  said  Majestvs  Letter  to  his  Governor 
"of  New  York." 

From  this  Recital  it  Appears  to  Us  that  those  Transactions  were  not  only 
carried  on  with  the  participation,  but  Confirmed  by  the  Express  Act  and 
Authority  of  the  Crown,  and  that  Confirmation  made  the  foundation  of  the 
Act  passed  by  New  York  for  Settling  the  Boundaries  between  the  two  prov- 
inces ;  of  all  which  Authority  and  Foundation  the  Act  we  now  lay  before  your 
Majesty  appears  to  us  to  be  entirely  destitute.1 

The  New  Jersey  act,  therefore,  of  1747-8,  was  disallowed  for  the  reasons 
set  forth  at  length  before  this  digression.  But  the  dispute  would  not  down, 
and,  as  the  initiative  of  New  Jersey  had  failed,  New  York  passed  an  act  on 
December  7,  1754,2  by  the  terms  of  which  the  dispute  was  referred  to  the 
adjudication  of  the  Crown,  and,  on  June  12,  1755,  the  Lords  of  Trade  in  an 
opinion  to  the  Lords  Justices,  acting  as  Regents  in  the  absence  of  the  King 
from  England,  recommended  that  this  Act  be  disallowed  for  the  objections 
stated  in  the  following  passage  of  their  recommendation: 

1  Documents  Relating  to  the  Colonial  History  of  New  Jersey.  Vol.  viii,  Part  1,  pp.  149-150. 
2 Lazi's  of  New-York  from  the  nth  Nov.  175s,  to  2?d  May  1762  (1762).  Vol.  ii,  p.  41. 


FURTHER    COLONIAL    PRECEDENTS  115 

It  is  improper  as  the  method  of  determination  which  it  proposes  is  un- 
usual and  contrary  to  the  constant  practice  in  cases  of  the  like  nature :  ques- 
tions of  disputed  boundary,  whereby  private  property  may  be  affected,  having 
never  been  determined  by  the  Crown  in  the  first  instance  but  always  by  a 
Commission  from  his  Majety  with  liberty  to  all  parties  which  shall  think  them- 
selves aggrieved  by  the  Judgement  of  the  Commissrs,  to  appeal  to  His  Maj'7 
from  their  decision.  It  is  also  improper,  because,  altho'  the  very  object  of  the 
Act  is  to  submit  the  matter  in  dispute,  as  far  as  private  property  is  CQncerned, 
to  the  determination  of  His  Majty  yet,  it  previously  ascertains  in  some  de- 
gree the  limits  of  private  Right  and  property,  by  declaring  that  certain 
patentees,  therein  mentioned  shall  not  extend  their  claims  beyond  a  limit  there- 
in described;  and  if  it  was  not  liable  to  these  objections,  yet  it  would  be  in- 
effectual, as  the  Proprietors  of  New  Jersey,  have  not  consented  to  the  method 
of  decision  therein  proposed.  For  all  which  reasons  we  humbly  beg  leave, 
to  lay  the  said  Act  before  your  Excellencies,  for  your  Excellencies  disal- 
lowance. 

We  beg  leave  further  to  represent  to  your  Excellencies,  that  it  appears  to 
us  to  be  of  the  greatest  importance  to  the  peace  and  tranquility  of  the  two 
Provinces,  that  some  certain  line  of  property  and  Jurisdiction  should  be  speed- 
ily settled  between  them,  which,  as  we  conceive,  can  only  be  done  by  a  Com- 
mission to  be  issued  in  the  same  manner  and  under  the  same  regulations  as 
that  issued  in  the  year  1737,  for  running  the  boundary  between  the  Provinces 
of  the  Massachusetts  Bay  and  .New  Hampshire,  with  liberty  to  either  party 
who  shall  think  themselves  aggrieved,  to  appeal  to  His  Majesty  in  his  Privy 
Council.  The  Agent  for  the  Proprietors  of  New  Jersey  declared  himself 
willing  to  concur  in  this  measure,  and  has  offered  to  give  ample  security,  that 
the  said  Proprietors  shall  and  will  defray  one  half  of  the  expence  of  such  a 
Commission,  but  the  Agent  of- New  York,  not  being  authorised  by  his  Con- 
stituents has  declined  entering  into  such  an  agreement.  We  would  there- 
fore humbly  propose  to  your  Excellencies,  that  an  additional  Instruction  be 
given  to  His  Majty's  Govr.  of  New  York  directing  him  to  recommend  it  to  the 
Assembly  of  that  province  to  make  provision  for  defraying  one  half  of  the 
expence  of  obtaining  and  executing  such  Commission,  as  aforesaid,  whenever 
his  Majty  shall  be  graciously  pleased  to  issue  it.1 

Owing  to  the  French  and  Indian  War,  the  New  York  Assembly  felt  itself 
unable  to  bear  its  share  of  the  expenses  in  running  the  line,  and  the  moneys 
were  not  appropriated.  However,  when  the  French  and  Indian  War  had 
practically  ended,  New  York  gave  its  consent  by  Act  of  December  11,  1762,2 
to  the  adjustment  of  the  boundary  by  Royal  Commission  or  otherwise,  and 
agreed  to  the  payment  of  "  one  equal  Half  Part  of  the  Joint  Expence  to  ac- 
crue on  the  final  Settlement  of  the  said  Controversy,  and  the  Boundary  Line 
between  the  said  Colonies." 

The  Colony  of  New  Jersey  by  Act  of  February  23,  1764,3  a  year  after  the 
Treaty  of  Peace,  did  likewise.  A  commission  was  substituted  for  the  Crown 
on  October  7,  1767,  consisting  of  thirteen  persons  chosen  from  the  different 

1  Documents  Relating  to  the  Colonial  History  of  New  Jersey,  Vol.  viii,  Part  2,  pp.  109-110. 
Pursuant  to  this  recommendation  the  Lords  Justices  on  June  24,  1755,  disallowed  the  Act. 
Ibid.,  pp.  114-5;  see  also  Documents  Relating  to  Colonial  History  of  New  York,  Vol.  vi,  p. 
952. 

2  Pratt,  Boundaries,  Vol.  ii,  pp.  747-9. 
s  Ibid.,  pp.  750-2. 


116  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

colonies,  of  whom  any  five  could  act.  Seven  of  the  Commissioners,  with  John 
Jay  as  Clerk  of  the  Commission,  met  in  the  City  of  New  York  on  July  18, 
1769.  They  were  Charles  Stewart,  Esq.,  Surveyor  General  of  the  Customs 
for  the  District  of  Quebec,  President;  Andrew  Elliot,  Esq.,  Receiver  General 
of  Quit  Rents  in  the  Province  of  New  York ;  Samuel  Holland,  Esq.,  Surveyor 
General  of  Lands  for  the  Northern  District  of  America;  Andrew  Oliver, 
Esq.,  Secretary  of  the  Province  of  Massachusetts  Bay;  Charles  Morris,  Esq., 
Surveyor  of  Lands  and  one  of  the  Council  of  the  Province  of  Nova  Scotia; 
and  Jared  Ingersoll,  Esq.,  of  the  Colony  of  Connecticut.  After  hearing  the 
evidence  presented  by  the  colonies  in  dispute,  four  of  the  commissioners, 
Messrs.  Stewart,  Oliver,  Elliot  and  Ingersoll,  present  on  October  7,  1769, 
rendered  a  majority  opinion,  and  two  thereof,  Messrs.  Holland  and  Morris, 
a  minority  opinion.  The  text  of  the  majority  opinion  is  not  uninteresting  in 
itself,  and  may  well  serve  as  a  model  of  proceedings  of  this  kind  : 

THE  AGENTS  on  the  part  of  both  Colonies,  having  offered  to  the  Court 
all  that  they  thought  necessary  or  proper  in  Support  of  their  respective 
Claims,  and  the  Court  having  Considered  the  Same,  DO  FIND 

THAT  King  Charles  the  Second  by  his  Letters  patent  bearing  date  the 
twelfth  day  of  March,  1664,  did  Grant  and  Convey  to  his  Brother  the  Duke 
of  York,  All  that  Tract  of  Country  and  Territory  now  Called  the  Colonies 
of  New  York  and  New  Jersey ;  and  that  the  said  Duke  of  York  afterwards 
by  his  Deed  of  Lease  and  Release  bearing  Date  the  23d  and  24th  days  of 
June,  1665,  did  Grant  and  Convey  to  Lord  Berkley  of  Stratton  and  Sir  George 
Carteret,  that  part  of  the  Aforesaid  Tract  of  Land  Called  New  Jersey.  The 
Northern  Bounds  of  which  in  said  Deed  are  described  to  be  "  to  the  north- 
ward as  far  as  the  Northernmost  Branch  of  the  said  Bay  or  River  of  Dela- 
ware which  is  in  41  deg.  40  min.  of  Latitude  and  Crosseth  thence  in  a 
Straight  Line  to  Hudson's  River  in  41  deg.  of  Latitude." 

We  further  find  amoung  the  many  Exhibits  a  Certain  Map  compiled  by 
Nicholas  John  Vischer,  and  published  not  long  before  the  aforesaid  Grant 
from  the  Duke  of  York,  which  we  have  reason  to  believe  was  Esteemed  the 
most  Correct  Map  of  that  Country  at  the  Time  of  the  said  Grant,  on  which 
Map  is  Laid  down  a  Fork  or  Branching  of  the  River  then  called  Zuydt  River 
or  South  River  now  Delaware  River  in  the  Latitude  of  41  deg.  and  40  min., 
which  Branch  we  Cannot  doubt  was  the  Branch  in  the  Deed  from  the  Duke 
of  York  called  the  Northernmost  Branch  of  the  said  River,  and  which  in  the 
Deed  is  said  to  lye  in  the  Latitude  of  41  deg.  and  40  min.  And  from  a  Care- 
full  Comparison  of  the  several  Parts  and  Places  Laid  down  on  the  said  Map, 
some  of  which,  more  Especially  towards  the  Sea  Coast  and  on  Hudson's 
River  We  have  Reason  to  believe  were  at  that  time  well  Known.  The  Dis- 
tance of  the  said  Branch  from  the  Sea  Shore  on  the  South,  and  the  Relative 
situation  of  the  same  with  regard  to  other  places  and  the  Lines  of  Latitude  as 
they  appear  to  be  laid  down  on  the  said  Map  at  that  and  other  places  in  the 
Inland  County:  We  are  of  opinion  that  the  said  Branch  so  laid  down  on  the 
said  Map  is  the  Fork  or  Branch  formed  by  the  Junction  of  the  Stream  or 
Water  Called  the  Mahackamack  with  the  River  Called  Delaware  or  Fishkill 
and  that  the  same  is  the  Branch  Intended  and  referred  to  in  the  before  men- 
tioned Deed  from  the  Duke  of  York,  as  the  Northern  Station  at  the 
River  Delaware,  which  Fork  or  Branch  We  find  by  an  observation  taken  by 


FURTHER    COLONIAL    PRECEDENTS  117 

the  Surveyors  appointed  by  the  Court,  to  be  in  the  Latitude  of  41  deg.  21 
min.  and  37  seconds. 

We  are  further  of  opinion  that  the  Northern  Station  at  Hudson's  River 
being  by  the  Words  of  the  Said  Deed  from  the  Duke  of  York,  Expressly 
Limited  to  the  Latitude  of  41  deg.  should  be  fixed  in  that  Latitude,  which 
Latitude  we  have  caused  to  be  taken  in  the  best  manner  by  the  Surveyors 
appointed  by  the  Court,  and  which  falls  at  a  Rock  on  the  West  Side  of  Hud- 
son's River  marked  by  the  said  surveyors,  being  79  Chains  and  27  Links  to 
the  Southward  on  a  Meridian  from  Sneydon's  House,  formerly  Corbet's. 

IT  IS  THEREFORE  the  final  Determination  of  the  Court  That  the 
Boundary  or  Partition  Line  between  the  said  Colonies  of  New  York  and  New 
Jersey  be  a  direct  and  straight  Line  from  the  said  Fork  at  the  Mouth  of  the 
River  Mahackimack  in  the  Latitude  of  forty-one  Degrees  twenty-one  Minutes 
and  thirty-seven  Seconds  to  Hudson's  River  at  the  said  Rock  in  the  Latitude 
of  forty-one  degrees  as  above  described.1 

As  to  the  subsequent  proceedings,  it  is  to  be  said  that  the  New  York  as- 
sembly passed  an  act  on  February  16,  1771,2  ratifying  the  judgment  of  the 
Commission,  and  that  New  Jersey  on  its  part  passed  an  act  September  26, 
1772,  referring  to  the  act  of  New  York  confirming  the  judgment  of  the  Com- 
mission,3 conditioning  its  acceptance  upon  the  allowance  of  the  New  York  Act 
by  his  Majesty  in  Council.  Therefore  on  September  1,  1773,  the  King  in 
Council  decreed  as  follows  : 

Whereas  the  Governor  of  His  Majesty's  Colony  of  New  York,  with  the 
Council  and  Assembly  of  the  said  Colony,  did  in  February  1771,  pass  an  act 
which  hath  been  transmitted  in  the  Words  following  —  Viz1. 

"  An  Act  for  Establishing  the  Boundary  or  Partition  Line  between  the 
Colonies  of  New  York  and  Nova  Caesarea  or  New  Jersey  and  for  Confirming 
Titles  and  Possessions."  .  .  • 

Which  Act,  together  with  a  Representation  from  the  Lords  Commissioners 
for  Trade  and  Plantations  thereupon,  having  been  referred  to  the  Considera- 
tion of  a  Committee  of  the  Lords  of  His  Majesty's  most  Honorable  Privy 
Council  for  Plantation  Affairs,  the  said  Lords  of  the  Committee  did  this  Day 
Report  as  their  opinion  to  His  Majesty,  that  the  said  Act  was  proper  to  be 
approved  —  His  Majesty  taking  the  same  into  Consideration,  was  pleased, 
with  the  advice  of  His  privy  Council,  to  Declare  his  approbation  of  the  said 
act;  and  pursuant  to  His  Majesty's  Royal  Pleasure  thereupon  Expressed, 
the  said  Act  is  hereby  Confirmed,  finally  Enacted  and  Ratified  accordingly 
—  Whereof  the  Governor  Lieutenant,  Governor  or  Commander  in  Chief 
of  His  Majesty's  said  Colony  of  New  York  for  the  time  being,  and  all  others 
whom  it  may  concern  are  to  take  Notice  and  Govern  themselves  accordingly.4 

The  case  of  New  York  v.  New  Jersey,  the  proceedings  of  which  have 
been  stated  with  considerable  fulness,  began  in  negotiation  and,  through  the 
intervention  of  the  Board  of  Trade,  ended  in  what  may  be  called  judicial  de- 

1  Pratt,  Boundaries,  Vol.  ii,  pp.  769-70. 

2  Ibid.,  pp.  782-5. 

*  Ibid.,  786-7. 

*  Ibid.,  789. 


US 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Debt  to 
Litigious 
Rhode  Island 


Justice  to  the 
Small  State 


cision.  There  are,  however,  two  cases,  shorter  and  less  detailed,  and  which, 
with  slight  changes  in  the  caption  and  in  the  phraseology  of  the  opinion,  might 
properly  appear  as  judgments  of  the  Supreme  Court  of  the  United  States  in 
the  series  of  cases  to  which  Rhode  Island  is  a  party. 

The  first  is  that  of  Rhode  Island  v.  Connecticut,1  decided  in  1727,  in  which 
the  boundary  between  Rhode  Island  on  the  west  and  Connecticut,  its  more 
powerful  neighbor,  was  decided;  and  the  second  is  that  of  Rhode  Island  v. 
Massachusetts,-  decided  in  1746,  in  which  the  eastern  boundary  of  Rhode 
Island  was  determined  in  its  favor  against  its  stronger  and  aggressive  neigh- 
bor to  the  east.  And,  without  stopping  to  analyze  these  cases,  models  of  their 
kind  and  of  judicial  settlement,  it  may  be  proper  to  premise  that  partisans 
of  judicial  settlement  are  deeply  indebted  to  the  litigious  little  State,  not  only 
for  these  cases  but  for  the  seven  lawsuits  with  the  State  of  Massachusetts, 
decided  by  the  Supreme  Court  of  the  United  States  and  to  be  found  in  the 
official  reports  of  that  Tribunal,  by  virtue  of  which  the  northern  boundary 
of  Rhode  Island,  and  therefore  the  southern  boundary  of  Massachusetts,  was 
finally  determined.  If  the  Atlantic  Ocean  had  not  been  made  the  southern 
boundary  of  the  little  State  by  charter,  it  would  no  doubt  have  instituted  a  law 
suit  to  have  that  determined,  as  it  did  in  the  western,  eastern  and  northern 
points  of  the  compass.  It  thus  furnishes,  it  is  believed,  the  unique  example  of 
a  State  having  submitted  all  disputes  concerning  its  boundary  to  judicial  de- 
cision, and  thus  having  its  bounds  settled  and  its  existence  preserved  by  decree 
of  court.  Justice  is  indeed  the  shield  and  buckler  of  the  smaller  States,  if 
they  did  but  know  it,  for  Rhode  Island  would,  without  the  shadow  of  a  doubt, 
have  been  swallowed  up  by  Connecticut  and  Massachusetts  had  their  land 
hunger  not  been  stayed  by  the  just  hand  of  the  judge.3 

1  Acts  of  the  Privy  Council,  Colonial  Series,  Vol.  vi,  p.  159,  §  344. 

2  Ibid.,  p.  267,  §470. 

3  An  accurate,  industrious  and  well  informed  writer  has  this  to  say  on  the  settlement  of 
disputes  of  this  kind  between  the  colonies : 

"  Boundary  disputes  between  the  several  colonies  were  of  even  more  pressing  importance 
than  were  those  with  foreign  nations.  In  1700  none  of  the  colonies  had  its  limits  so  well  de- 
fined that  it  was  free  from  such  controversies,  and  as  time  went  on  these  questions  had  to  be 
settled.  It  was  difficult  for  the  interested  parties  to  arrive  at  a  satisfactory  agreement  with- 
out recourse  to  some  outside  party :  consequently  the  Board  of  Trade  was  the  body  to  which, 
as  a  last  resort,  all  these  controversies  were  referred.  .  .  . 

"  As  all  settlements  of  a  boundary  controversy  were,  of  necessity,  ratified  by  laws  passed 
by  the  colonial  legislature,  any  such  settlement  could  be  invalidated  by  the  action  of  the 
Board  of  Trade.  If  private  individuals  were  injured  in  their  property  interests,  they  had 
just  grounds  for  a  complaint  to  the  king,  and  such  a  complaint  would  involve  the  boundary 
dispute  and  its  settlement.  If,  on  the  other  hand,  the  interests  of  the  crown  were  at  stake, 
it  had  to  be  made  a  party  to  the  settlement  or  it  would  refuse  to  recognize  its  validity.  Thus 
in  either  case  the  question  would  come  before  the  crown  for  ratification.  .  .  . 

"  The  regular  method  of  procedure  in  settling  a  dispute  was  to  secure  the  appointment  of 
a  royal  commission.  All  the  important  boundary  controversies,  such  as  those  between  North 
Carolina  and  Virginia  [The  commissions  for  settling  this  boundary  were  joint  tribunals,  ap- 
pointed partly  by  the  crown  and  partly  by  the  proprietaries.  See:  North  Carolina  Colonial 
Records,  vol.  i,  703,  716,  735,  750,  vol.  Hi,  12.  17.],  North  and  South  Carolina  [Ibid.  vol.  iv, 
28.],  New  York  and  Massachusetts  [Proposed  but  not  carried  into  execution.  See:  Pratt's 
Boundaries  of  New  York  vol.  ii,  88-225.],  and  the  latter  province  and  New  Hampshire  [Com- 


FURTHER  COLONIAL  PRECEDENTS  119 

Second,  as  to  appeals  from  judicial  decisions  of  a  colony  involving  the  Legal 


troversies 


setting  aside  of  colonial  laws  and  the  reversal  of  decisions  of  colonial  courts  pverCoioniai 

o  Laws 

based  upon  such  laws. 

In  1699  the  .colony  of  Connecticut  passed  an  act  regulating  the  descent 
of  estates  of  persons  dying  intestate,  allowing  the  children  of  the  deceased, 
females  as  well  as  males,  to  share  in  the  distribution  of  the  realty,  reserv- 
ing only  to  the  eldest  son  a  double  portion  instead  of  casting  upon  him  the 
realty  in  its  entirety,  as  in  the  common  law  of  England.1  The  charter  of 
Connecticut  allowed  the  colony  "  from  Time  to  Time  to  Make,  Ordain  and 
Establish  all  manner  of  wholesome,  and  reasonable  Laws,  Statutes, 
Ordinances,  Directions,  and  Instructions,  not  Contrary  to  the  Laws  of  this 
realm  of  England."  2  "There  was  ■no  reservation  in  the  charter  for  the 
transmission  of  the  laws  to  England,  there  to  be  approved  by  the  Crown 
before  they  went  into  effect,  or  to  go  into  effect  subject  to  be  set  aside  by 
the  Crown  within  a  certain  period. 

The  colonial  officials  elected  by  the  freemen  of  the  colony  were  not 
anxious  to  awaken  sleeping  dogs,  if  that  homely  expression  rather  than 
lions  be  applied  to  the  mother  country,  and  laws  claimed  to  be  in  excess 

mission  of  1737.  See :  New  York  Colonial  Documents,  vol.  vi,  pp.  823,  953.]  and  Rhode 
Island  [The  commissioners  in  this  case  were  Cadwallader  Colden,  Abraham  Vanhorn,  Phillip 
Livingston,  Archibald  Kennedy,  and  James  De  Lancey  of  New  York;  John  Hamilton,  John 
Wells,  John  Reading,  Cornelius  Vanhorn,  and  William  Provost  of  New  Jersey ;  and  William 
Skeene,  William  Shirreft,  Henry  Cope,  Erasmus  James  Phillips,  and  Otho  Haymilton  of 
Nova  Scotia.  See:  Board  of  Trade  to  Governor  Clinton.  Ibid.,  167-168.],  were  settled  in 
this  way.  These  commissioners  were  appointed  by  the  Board  of  Trade  upon  the  authority 
of  an  Order  in  Council,  were  composed  of  men  selected  from  the  neighboring  colonies,  and 
were  usually  paid  by  the  two  parties  to  the  controversy.  This  method  of  payment  required 
the  consent  of  both  parties,  but  it  seldom  happened  that  a  colony  refused  to  bear  its  share 
of  the  charges.  [In  regard  to  a  commission  for  settling  the  boundary  between  Massachu- 
setts and  Rhode  Island,  the  Board  says  the  '  charges  of  which  and  the  execution  thereof  the 
agents  for  the  Massachusetts  Bay  and  Rhode  Island  have  agreed  are  reasonable  equally  to 
be  bourne  by  both  provinces.' — Letter  to  Clinton,  August  1,  1740.  Ibid.,  167-168.]  In  some 
cases  the  Board  secured  authority  to  pay  the  expenses  of  such  commissions  from  the  quit 
rents  of  the  provinces  concerned,  as  was  done  in  settling  the  southern  boundary  of  Virginia 
in  1711  and  again  in  1729  [North  Carolina  Colonial  Records,  vol.  iii,  13,  17,  vol.  iv,  28.]  .  .  . 

"  It  is  thus  seen  that  the  Board  of  Trade  acted  as  a  high  court  of  arbitration  for  disputes 
as  to  territory  or  jurisdiction.  It  did  not  settle  disputes  on  its  own  authority,  but  it  pro- 
vided a  way  by  which  such  controversies  could  be  determined  by  special  commissions.  These 
were  in  reality  special  courts  of  arbitration,  which  had  power  to  settle  the  questions  at  issue, 
but  from  which  an  appeal  would  lie  to  the  Board.  [In  form  it  was  an  appeal  to  the  king, 
but  as  all  such  complaints  and  appeals  were  heard  by  the  Board  of  Trade,  it  was  in  reality 
an  appeal  to  that  body.]  If  either  party  were  dissatisfied  with  the  decision  of  such  a  com- 
mission, it  could  prosecute  a  complaint  in  the  usual  manner;  and  if  its  work  should  appear 
irregular,  another  commission  was  issued  to  rehear  the  case.  In  all  this  there  was  an  evi- 
dent attempt  to  do  justice  to  all  parties  concerned.  .  .  .  The  clause  in  the  Constitution  re- 
garding changes  in  state  boundaries  is  but  a  recognition  of  the  constant  practice  of  the  Board 
of  Trade  in  settling  disputes  of  this  character.  .  .  ."  COliver  Morton  Dickerson,  American 
Colonial  Government,  1696-1765,  pp.  287,  288,  290-91,  295). 

The  learned  writer  might  have  added  that  such  action  of  the  King  in  Council  through  the 
Board  of  Trade  is  the  precedent  for  the  9th  of  the  Articles  of  Confederation,  and  it  would 
appear,  of  that  large  and  beneficent  jurisdiction  with  which  the  Supreme  Court  of  these 
United  States  has  been  endowed  by  Article  II.  Section  2  of  the  Constitution  thereof. — Ed. 

1  The  Public  Records  of  the  Colony  of  Connecticut,  \r<>l.  I]  16S9  to  1706,  C.  J.  Hoadly 
ed.,   1868.   pp.   306-9. 

2  Thorpe,  Charters  and  Constitutions,  Vol.  1,  p.  533;  Poore,  p.  255. 


120  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

of  this  grant  would  reach  the  King  in  Council  or  the  Board  of  Trade  through 
private  parties  and  upon  private  initiative  if  at  all.  In  this  case  the  trans- 
mitter was  at  hand  in  the  person  of  John  Winthrop,  son  of  Wait  Still 
Winthrop,  Major  General  of  Massachusetts  and  Chief  Justice  of  its  Superior 
Court,  who  died  intestate  in  1717  owning  personalty  and  realty  in  Connecti- 
cut, in  which  colony  he  had  himself  been  born  a  son  of  the  Governor  thereof 
but  had  preferred  to  grace  Massachusetts  by  his  presence.  John  Winthrop, 
of  whom  Carlyle's  mother  would  doubtless  have  said,  as  she  said  of  her 
son,  "  he  was  an  ill  man  to  live  with,"  had  a  sister,  Anne,  who  married  a 
well  connected  but  not  too  well  to  do  person  by  the  name  of  Lechmere,  who 
resided  at  that  time  in  Boston.  On  behalf  of  his  wife,  he  claimed  one  por- 
tion of  the  realty  of  the  father-in-law's  Connecticut  estate.  Winthrop  was 
appointed  administrator  by  the  Court  of  Probates  for  the  County  of  New 
London,  Colony  of  Connecticut,  in  which  the  realty  was  situated,  and,  con- 
tending that  he  was  entitled  to  the  real  property  according  to  the  doctrine 
of  primogeniture,  obtaining  in  the  common  law  of  England,  did  not  in- 
clude the  realty  in  his  inventory,  as  he  should  have  done  according  to  the 
Connecticut  act  of  1699  for  the  settlement  of  intestate  estates.  The  Court 
of  Probates  therefore  rejected  the  inventory  and  Winthrop,  as  administrator, 
thereupon  appealed  to  the  Superior  Court.  Pending  the  appeal,  Lechmere 
applied  to  the  Court  of  Probates  for  new  letters  of  administration,  which, 
however,  denied  his  motion.  Thereupon,  on  appeal  to  the  Superior  Court, 
having  the  two  appeals  before  it  at  one  and  the  same  time,  it  decided  both 
of  them  against  Winthrop.  The  General  Assembly  refused  to  intervene  in 
his  behalf  or  allow  an  appeal  to  the  King  in  Council.  The  appeal,  however, 
was  made  by  Winthrop  and  allowed  by  the  King  in  Council,  and  the  case 
on  appeal  referred  to  the  Committee  for  Hearing  Appeals  from  the  Planta- 
tions. 

Before  this  Committee  Sir  Philip  Yorke,  then  Attorney  General  and  later 
Lord  Chief  Justice  of  the  King's  Bench  and  Lord  High  Chancellor,  known 
to  lawyers  as  Lord  Hardwicke  and  to  the  English  speaking  world  as  the 
greatest  of  equity  judges,  and  Sir  Charles  Talbot,  then  Solicitor  General, 
later  Lord  Chancellor  Talbot,  less  known  perhaps  but  hardly  less  deserv- 
ing than  Hardwicke,  who  succeeded  him  in  the  Chancellorship,  appeared 
on  behalf  of  Winthrop.  On  behalf  of  Lechmere  one  Willes,  supposed  to  be 
Sir  John  Willes,  later  Attorney  General  and  Lord  Chief  Justice  of  the 
Common  Pleas,  and  an  English  barrister  by  the  name  of  Barton,  appeared. 

Without  referring  the  appeal  to  the  Board  of  Trade,  as  was  usual  in  such 
cases,  the  Committee  for  Hearing  Appeals  from  the  Plantations  heard  coun- 
sel for  plaintiff  and  defendant  and,  after  argument,  recommended  that  the 
Connecticut  act  of  1699  for  the  settlement  of  intestate  estates,  and  subse- 


FURTHER  COLONIAL  PRECEDENTS  121 

quent  acts  in  the  case,  be  declared  null  and  void  as  contrary  to  the  common  prne°c^deernt 
law  of  England,  and  that  the  decisions  of  the  Connecticut  courts  as  against   p0r^aof"ng 
Winthrop's  contention  and  in  favor  of  Lechmere  and  his  wife  be  reversed  courtToeDeciare 
and  set  aside  as  based  upon  the  Connecticut  statutes  contrary  to  the  charter,   twlTsSmionii 
or,  as  we  should  say,  as  unconstitutional. 

As  the  decree  of  the  King  in  Council  approving  the  recommendation  of 
the  Lords  of  Appeal  was  well  known  to  the  colonists,  extending  the  judicial 
power  to  acts  of  the  legislature  as  well  as  to  judgments  of  a  colonial  court, 
and  is  the  great  precedent  for  investing  the  Supreme  Court  of  the  United 
States  with  the  power  of  pronouncing  laws  unconstitutional  and  reversing 
decisions  of  courts  of  justice,  whether  of  the  State  or  of  the  United  States, 
based  upon  such  acts  of  Congress  or  such  provisions  of  State  constitutions, 
the  material  portion  of  the  report  of  the  Lords  of  Appeal,  confirmed  by  the 
King  in  Council,  is  given  in  its  exact  words : 

Their  Lordships,  upon  due  consideration  of  the  whole  matter,  do  agree 
humbly  to  report  as  their  opinion  to  your  Majesty,  that  the  said  act  for  the 
settlement  of  intestate  estates  should  be  declared  null  and  void,  being  contrary 
to  the  laws  of  England  in  regard  it  makes  lands  of  inheritance  distributable 
as  personal  estates  and  is  not  warranted  by  the  charter  of  that  colony  ;  and  that 
the  said  .  .  .  sentences  .  .  .  rejecting  the  inventory  .  .  .  because  it  did  not 
contain  the  real  as  well  as  personal  estate  .  .  .  may  be  all  reversed  and  set 
aside;  and  that  the  said  sentence  vacating  the  said  letters  of  administration 
to  the  said  Thomas  and  Anne  Lechmere  should  also  be  reversed  and  set  aside.1 

Commentary  upon  this  case  could  only  weaken  its  force  and  effect  as 
the  younger  Pitt  is  reported  to  have  said  of  Erskine's  speech  following  that 
of  Fox,  that  it  only  repeated  and  weakened  the  arguments  of  that  right 
honorable  gentleman. 

By  the  charter  of  June  26,  1632,  the  second  Lord  Baltimore  was  granted 
the  province,  now  the  State  of  Maryland,  bounded  on  the  north  by  the 
40th  parallel  of  North  Latitude,  on  the  west  and  southwest  by  a  line  south 
of  this  parallel  to  the  farthest  sources  of  the  Potomac,  and  thence  the 
"further  bank"  of  that  river  to  Chesapeake  Bay;  on  the  south  by  a  line 
across  the  Bay  and  peninsula  to  the  Atlantic  Ocean ;  and  on  the  east  by  that 
Ocean  and  Delaware  Bay  and  River.2 

1  Privy  Council,  1728  (Connecticut  Colonial  Records,  1726-1735,  pp.  571,  577).  See  also 
J.  B.  Scott,  Judicial  Settlement  of  Controversies  Between  States  of  the  American  Union  Vol 
i,  pp.  93-8. 

2  The  portion  of  the  charter  relating  to  the  boundaries  of  the  colony  is,  in  English  trans- 
lation, as  follows : 

"  All  that  Part  of  the  Peninsula,  or  Chersonese,  lying  in  the  Parts  of  America,  between 
the  Ocean  on  the  East,  and  the  Bay  of  Chesapeake  on  the  West,  divided  from  the  Residue 
thereof  by  a  Right  Line  drawn  from  the  Promontory,  or  Head-Land,  called  Watkin's  Point, 
situate  upon  the  Bay  aforesaid,  near  the  River  of  Wigloo,  on  the  West,  unto  the  Main  Ocean 
on  the  East ;  and  between  that  Boundary  on  the  South,  unto  that  Part  of  the  Bay  of  Dela- 
ware on  the  North,  which  lieth  under  the  Fortieth  Degree  of  North  Latitude  from  the  Equi- 
noctial, where  New  England  is  terminated;  And  all  that  Tract  of  Land  within  the  Metes 


122  THE   UNITED   STATES:   A   STUDY   IN    INTERNATIONAL   ORGANIZATION 

On  March  14,  1681,  a  charter  was  granted  to  William  Penn  of  the 
tract  of  territory  now  known  as  Pennsylvania  in  honor  of  its  first  proprietor, 
including,  as  claimed  by  Penn,  the  three  lower  counties  now  known  as 
and  forming  the  State  of  Delaware.  The  territory  was,  according  to  the 
charter.  "  bounded  on  the  East  by  Delaware  River,  from  twelve  Miles  Dis- 
tance Xorthwards  of  Newcastle  Town  unto  the  three-and-fortieth  Degree 
of  Northern  Latitude,  if  the  said  River  doth  extend  so  far  Northward;  but 
if  the  said  River  shall  not  extend  so  far  Northward,  then  by  the  said  River 
so  far  as  it  doth  extend;  and  from  the  Head  of  the  said  River,  the  Eastern 
Bounds  are  to  be  determined  by  a  Meridian  Line,  to  be  drawn  from  the 
Head  of  the  said  River  unto  the  said  Forty-third  Degree.  The  said  Land 
to  extend  Westward  five  Degrees  in  Longitude,  to  be  computed  from  the 
said  Eastern  Bounds ;  and  the  said  Lands  to  be  bounded  on  the  North  by 
the  Beginning  of  the  Three-and-fortieth  Degree  of  Northern  Latitude, 
and  on  the  South  by  a  Circle  drawn  at  twelve  Miles  Distance  from  New- 
castle Northward,  and  Westward  unto  the  Beginning  of  the  Fortieth  Degree 
of  Northern  Latitude,  and  then  by  a  straight  Line  Westward  to  the  Limits 
of  Longitude,  above-mentioned."  1 

It  will  be  observed  that  this  grant  does  not  include  the  town  of  New- 
castle but  begins  at  a  point  twelve  miles  to  the  north  thereof.  It  thus  ex- 
cluded the  three  lower  counties,  or,  in  short,  the  State  of  Delaware.  William 
Penn's  claim  to  Delaware  is  based  upon  subsequent  transactions.  On  August 
24,  1682,  he  purchased  a  quit  claim  from  the  Duke  of  York  to  the  lands  west 
of  the  Delaware  River  embraced  in  the  grant  of  Charles  II  of  March  12, 
1664,  to  James,  Duke  of  York,  and  the  confirmation  of  that  grant  by 
letters  patent  dated  June  29,  1674,  from  Charles  II  to  his  brother,  the  Duke 
of  York. 

To  the-  laymen  it  would  appear  that  Pennsylvania  could  not  extend 
below  40 z  North  Latitude,  inasmuch  as  the  province  of  Maryland  was  de- 
clared by  its  charter  of  1632  to  extend  to  that  point,  and  that  degree  of 
latitude  was  likewise  declared  to  be  its  northern  boundary.  It  is  true  that 
the  grant  of  Charles  II  to  his  brother,  the  Duke  of  York,  of  "  all  the  main 
land  of  New  England  .  .  .  and  all  the  land  from  the  west  side  of  Connecti- 

underwritten  (that  is  to  say)  passing  from  the  said  Bay,  called  Delaware  Bay,  in  a  right 
Line,  by  the  Degree  aforesaid,  unto  the  true  meridian  of  the  first  Fountain  of  the  River  of 
Pattowmack,  thence  verging  towards  the  South,  unto  the  further  Bank  of  the  said  River, 
and  following  the  same  on  the  West  and  South,  unto  a  certain  Place  called  Cinquack,  situate 
near  the  Mouth  of  the  said  River,  where  it  disembogues  into  the  aforesaid  Bay  of  Chesa- 
peake, and  thence  by  the  shortest  Line  unto  the  aforesaid  Promontory  or  Place,  called  Wat- 
kin's  Point ;  so  that  the  whole  tract  of  land,  divided  by  the  Line  aforesaid,  between  the  main 
Ocean  and  Watkin's  Point,  unto  the  Promontory  called  Cape  Charles,  and  every  the  Ap- 
pendages thereof,  may  entirely  remain  excepted  for  ever  to  US,  our  Heirs  and  Successors." 
F.  \\  Thorpe,  The  Federal  and  State  Constitutions,  Colonial  Laws,  etc.  of  the  United  States, 
1909.  Vol.  iii,  p.  1678. 

1  The  Charters  and  Acts  of  Assembly  of  the  Province  of  Pennsylvania,  1762,  Vol.  i,  p.  1. 


FURTHER    COLONIAL    PRECEDENTS  123 

cut  to  ye  east  side  of  Delaware  Bay,  confirmed  by  the  letters  patent  of 
1674,"  included  Delaware,  or  was  claimed  to  do  so.  Penn  was  anxious  to 
secure  the  tract  of  land  from  his  little  city  of  Philadelphia  on  the  Delaware 
River,  and  through  which  the  fortieth  degree  of  north  latitude  ran,  to  the 
mouth  of  the  Delaware  Bay,  some  ninety  miles  to  the  south,  and  he  took 
care  to  purchase  and  acquire  the  title  to  this  tract  claimed  by  the  Duke  of 
York  under  the  two  grants  in  question.  On  the  other  hand,  the  proprietor  of 
Maryland  was  anxious  to  have  his  province  extend  to  the  fortieth  degree 
of  north  latitude  and  be  bounded  on  the  north  throughout  its  entire  extent 
by  that  parallel  of  latitude. 

Here  was  a  dispute  involving  a  vast  domain,  claimed~~by  Lord  Baltimore  Penn  v. 
under  a  charter  of  1632  granted  by  Charles  I,  to  which  William  Penn  laid  Baltimore 
claim  under  a  charter  granted  by  Charles  II  in  1664.     The  title  of  the  son  was 
preferred  to  that  of  the  father,  contrary  to  the  time  honored  maxim  of  the  law, 
prior  in  tempore,  potior  in  jure. 

The  Duke  of  York  appears  to  have  doubted  his  title  to  the  three  lower 
counties,  or  at  least  thought  it  well  to  have  whatever  cloud  there  might  be 
upon  his  title  cleared  up.  He  therefore  applied  to  his  royal  brother,  Charles 
II,  for  the  grant  of  the  counties,  which  appears  to  have  been  made,  and 
which  would  inure  to  Penn's  benefit,  although  it  might  have  been  and  was 
contended  that  the  grant  to  the  Duke  of  York  subsequent  to  his  sale  and 
conveyance  of  the  same  territory  to  Penn  was  an  evasion,  that  the  title  was 
not,  at  the  time  of  the  earlier  transaction,  in  the  Duke,  and  that  therefore 
it  could  not  pass  to  his  grantee. 

When  the  news  of  the  proposed  grant  of  the  lower  counties  to  the  Duke 
of  York  became  known  to  Lord  Baltimore,  he  prayed  that  it  should  not  be 
made,  in  that  the  territory  in  question  was  comprised  within  his  province. 
Baltimore's  petition  was  referred  to  the  Lords  Commissioners  for  Trade  and 
Plantations,  who,  under  date  of  November  13,  1685,  reported  that,  "  Having 
examined  the  matters  in  difference  between  the  Lord  Baltimore  and  William 
Penn,  Esq.,  on  behalf  of  His  then  Majesty,  concerning  a  tract  of  land  called 
Delaware,  they  found  the  land  intended  to  be  granted  to  Lord  Baltimore 
was  only  lands  uncultivated,  and  inhabited  by  savages;  and  that  the  tract 
of  land  then  in  dispute,  was  inhabited  and  planted  by  Christians  at  and  be- 
fore the  date  of  the  Lord  Baltimore's  patent,  as  it  had  ever  been  since,  to 
that  time,  and  continued  as  a  distinct  colony,  from  Maryland,  so  that  their 
Lordships  humbly  offered  their  opinion,  that  for  avoiding  further  differ- 
ences, the  tract  of  land  lying  between  the  river  and  the  eastern  sea,  on  the 
one  side,  and  Chesapeake  Bay  on  the  other,  be  divided  into  equal  parts,  by 
a  line  from  the  latitude  of  Cape  Henlopen  to  the  40th  degree  of  northern 
latitude;  and  that  one-half  thereof,  lying  towards  the  bay  of  Delaware  and 


124  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

the  eastern  sea,  be  adjudged  to  belong  to  his  Majesty,  and  the  other  half 
to  Lord  Baltimore."  ' 

This  report  His  Majesty  approved,  it  was  also  affirmed  in  1709  by  Queen 
Anne  in  Council,  and  by  this  interpretation  of  the  grants  in  question  Penn 
would  acquire  that  part  of  the  three  counties  bordering  on  the  Delaware 
River  and  the  ocean  as  far  south  as  Cape  Henlopen,  and  Lord  Baltimore 
the  western  half  thereof.  The  boundaries,  however,  would  remain  to  be 
run  and  marked,  and,  after  much  delay,  an  agreement  was  entered  into, 
dated  May  10,  1732,  between  Penn's  sons,  on  the  one  hand,  and  the  then 
Lord  Baltimore,  on  the  other,  providing  for  the  determination  of  the  line 
by  commissioners  on  or  before  Christmas,  1733.  The  line,  however,  was 
not  drawn  before  the  expiration  of  this  time.  The  Penns  thereupon  peti- 
tioned the  Privy  Council  to  have  the  agreement  executed,  but  the  Committee 
for  Hearing  Appeals  from  the  Plantations  recommended,  on  May  10,  1735, 
"  that  the  Consideration  of  the  said  Report  and  Petitions  should  be  adjourned 
until  the  end  of  Michaelmass  Term  next  in  Order  to  give  an  Opportunity 
to  the  said  John  Thomas  and  Richard  Penn  to  proceed  in  a  Court  of  Equity 
to  obtain  relief  upon  the  said  Articles  of  Agreement  so  insisted  upon  by 
them  according  as  they  shall  be  advised."  2  Therefore  the  Penns  filed  their 
bill  in  equity  on  June  21,  1731,  for  the  specific  performance  of  the  articles 
of  the  agreement. 

In  1745  Lord  Chancellor  Hardwicke,  before  whom  the  case  was  heard, 
thought  the  bill  should  be  amended  by  making  the  Attorney  General  a  party 
on  behalf  of  the  Crown.3  As  amended,  the  bill  was  heard  and,  in  1750,  the 
specific  performance  of  the  articles  of  agreement  was  decreed  by  Lord  Hard- 
wicke.4 For  present  purposes  it  is  sufficient  to  say  that  the  plea  to  the  juris- 
diction of  the  court  taken  by  Lord  Baltimore  was  overruled,  and  properly, 
for  although  the  lands  lay  beyond  the  jurisdiction  of  the  court,  the  parties 
plaintiff  and  defendant  were  before  it,  and  as  equity  acts  in  personem  they 
could  properly  be,  and  they  'were  ordered  in  England  to  perform  the  act  in 
America. 

This  is,  however,  a  matter  of  equity  practice  and  procedure.  The  im- 
portant point  for  us  is  that  the  Privy  Council  refused  to  assume  jurisdiction, 
amd,  by  means  of  commissions,  to  determine  the  boundaries  in  dispute,  since 
there  was  an  agreement  between  the  parties  on  the  very  question,  enforcible 
in  equity.  There  was  no  need  to  resort  to  the  King  in  Council,  because  the 
parties  had  their  day  in  court.     The  question  was  therefore  settled,  upon 

1  Chalmers,  Opinions  of  Eminent  Lawyers,  pp.  86-7. 

2  Acts  of  the  Privy  Council,  Colonial  Scries,  Vol.  iii,  p.  336. 

3  Penn.  v.  Lord  Baltimore   ( Ridgeway  temp.  Hardwicke,  332;  Reprint,  English  Reports, 
Vol.  27,  p.  1132). 

4  Penn.  v.  Lord  Baltimore  (1  Vesey  Sr.,  444). 


FURTHER  COLONIAL  PRECEDENTS  125 

great  deliberation,  by  the  first  of  English  Chancellors,  that  boundaries  be- 
tween provinces  as  large  as  kingdoms  did  not  need  to  be  settled  by  force  of 
#irms ;  that  disputes  of  this  nature  were  susceptible  of  judicial  determination, 
and  that  an  agreement  to  settle  the  dispute  and  to  draw  the  boundaries  in  a 
particular  manner  made  the  question  judicial,  to  be  passed  upon  in  a  court  of 
justice,  although  it  might  have  been  considered  political,  in  the  absence  of 
an  agreement,  and  as  such  been  passed  upon  by  the  King  in  Council. 

The  case  of  Pcnn  v.  Lord  Baltimore  was,  therefore,  a  precedent  for  the  Difpule"1 
framers  of  the  Constitution,  clearly  pointing  out  that  political  questions  would  jiSuaSte" 
become  justiciable  by  an  agreement  to  settle  them,  which,  when  made,  could 
be  interpreted  and  carried  into  execution  by  a  court  of  justice.  It  was  quoted 
as  such  in  the  leading  case  of  Rhode  Island  v.  Massachusetts  (12  Peters,  657), 
decided  in  1838,  in  which  decision  the  distinction  here  taken  was  announced, 
and  the  procedure  before  the  King  in  Council  recognized  as  a  precedent  for 
investing  the  Supreme  Court  with  jurisdiction  of  controversies  between  States. 
More  recently  Chief  Justice  White,  in  delivering  the  opinion  of  the  court  in 
Virginia  v.  West  Virginia  (246  U.  S.,  565,  597), *  decided  in  1918,  thus  re- 
ferred to  the  case  of  Rhode  Island  v.  Massachusetts  and  the  proceedings  in  the 
Privy  Council  as  a  precedent,  and  gave  to  each,  as  such,  the  stamp  of  his 
approval : 

Bound  by  a  common  allegiance  and  absolutely  controlled  in  their  exterior 
relations  by  the  mother  country,  the  colonies  before  the  Revolution  were  yet 
as  regards  each  other  practically  independent,  that  is,  distinct  one  from  the 
other.  Their  common  intercourse,  more  or  less  frequent,  the  contiguity  of 
their  boundaries,  their  conflicting  claims,  in  many  instances,  of  authority  over 
undefined  and  outlying  territory,  of  necessity  brought  about  conflicting  con- 
tentions between  them.  As  these  contentions  became  more  and  more  irritat- 
ing, if  not  seriously  acute,  the  necessity  for  the  creation  of  some  means  of 
settling  them  became  more  and  more  urgent,  if  physical  conflict  was  to  be 
avoided.  And  for  this  reason,  it  is  to  be  assumed,  it  early  came  to  pass  that 
differences  between  the  colonies  were  taken  to  the  Privy  Council  for  settle- 
ment and  were  there  considered  and  passed  upon  during  a  long  period  of 
years,  the  sanction  afforded  to  the  conclusions  of  that  body  being  the  entire 
power  of  the  realm,  whether  exerted  through  the  medium  of  a  royal  decree  or 
legislation  by  Parliament.  This  power,  it  is  undoubtedly  true,  was  principally 
called  into  play  in  cases  of  disputed  boundary,  but  that  it  was  applied  also 
to  the  complaint  of  an  individual  against  a  colony  concerning  the  wrong- 
ful possession  of  property  by  the  colony  alleged  to  belong  to  him,  is  not  dis- 
puted. This  general  situation  as  to  the  disputes  between  the  colonies  and 
the  power  to  dispose  of  them  by  the  Privy  Council  was  stated  in  Rhode 
Island  v.  Massachusetts,  12  Pet.  657,  739,  et  scq.,  and  will  be  found  reviewed 
in  the  authorities  referred  to  in  the  margin. 

When  the  Revolution  came  and  the  relations  with  the  mother  country 
were  severed,  indisputably  controversies  between  some  of  the  colonies,  of  the 
greatest  moment  to  them,  had  been  submitted  to  the  Privy  Council  and  were 

1  Also  Scott,  Judicial  Settlement,  Vol.  ii,  pp.  1751-73. 


126  THE   UNITED   STATES:    A   STUDY    IX    INTERNATIONAL   ORGANIZATION 

undetermined.  The  necessity  for  their  consideration  and  solution  was  ob- 
viously not  obscured  by  the  struggle  for  independence  which  ensued,  for,  by 
the  Ninth  of  the  Articles  of  Confederation,  an  attempt  to  provide  for  them 
as  well  as  for  future  controversies  was  made.  Without  going  into  detail  if 
suffices  to  say  that  that  article  in  express  terms  declared  the  Congress  to  be 
the  final  arbiter  of  controversies  between  the  States  and  provided  machinery 
for  bringing  into  play  a  tribunal  which  had  power  to  decide  the  same.  That 
these  powers  were  exerted  concerning  controversies  between  the  States  of  the 
most  serious  character  again  cannot  be  disputed.  But  the  mechanism  de- 
vised for  their  solution  proved  unavailing  because  of  a  want  of  power  in  Con- 
gress to  enforce  the  findings  of  the  body  charged  with  their  solution,  a  de- 
ficiency of  power  which  was  generic,  because  resulting  from  the  limited  au- 
thority over  the  States  conferred  by  the  Articles  of  Confederation  on  Con- 
gress as  to  every  subject.  That  this  absence  of  power  to  control  the  govern- 
mental attributes  of  the  States,  for  the  purpose  of  enforcing  findings  con- 
cerning disputes  between  them,  gave  rise  to  the  most  serious  consequences, 
and  brought  the  States  to  the  very  verge  of  physical  struggle,  and  resulted  in 
the  shedding  of  blood  and  would,  if  it  had  not  been  for  the  adoption  of  the 
Constitution  of  the  United  States,  it  may  be  reasonably  assumed,  have  ren- 
dered nugatory  the  great  results  of  the  Revolution,  is  known  of  all  and  will 
be  found  stated  in  the  authoritative  works  on  the  history  of  the  time. 

The  views  of  the  Chief  Justice  can  not  be  gainsaid.  If,  however,  con- 
temporary exposition  is  preferred,  as  to  the  nature,  function  and  role  of 
the  Privy  Council  in  the  administration  of  justice  and  the  maintenance  of 
order  upon  the  basis  of  law,  it  is  at  hand,  for  in  the  seventeenth  article  of  the 
Constitution  of  Delaware,  adopted  on  Friday,  September  20,  1776,  by  the  three 
lower  counties  of  Pennsylvania,  forming  "  The  Delaware  State,"  as  it  was 
then  called,  it  is  provided  that :  "  There  shall  be  an  appeal  from  the  supreme 
court  of  Delaware  in  matters  of  law  and  equity,  to  a  court  of  seven  persons, 
to  consist  of  the  president  for  the  time  being,  who  shall  preside  therein,  and 
six  others,  to  be  appointed,  three  by  the  legislative  council,  and  three  by  the 
house  of  assembly,  who  shall  continue  in  office  during  good  behaviour,  and  be 
commissioned  by  the  president  under  the  great  seal ;  which  court  shall  be 
stiled,  The  Court  of  Appeals,  and  have  all  the  authority  and  powers  hereto- 
fore given  by  law  in  the  last  resort  to  the  king  in  council,  under  the  old  gov- 
ernment." 1 

1  The  Constitutions  of  the  Several  Independent  States  of  America,  17S1,  p.  111. 


VI 
ESTABLISHMENT  OF  STATE  CONSTITUTIONS 

In  short,  these  legislators  derive  their  power  from  the  constitution,  how  then  can  they 
change  it,  without  destroying  the  foundation  of  their  authority?  (.1/.  de  Vattel,  The  Lazv 
of  Nations;  or  Principles  of  the  Law  of  Nature:  Applied  to  the  Conduct  and  Affairs  of 
Nations  and  Sovereigns,  175S,  Translated  from  the  French  Vol.  I,  1760,  Book  I,  Chapter 
III,  §  34,  P-  iS.) 

To  examine  the  Union  before  we  have  studied  the  State  would  be  to  adopt  a  method 
filled  with  obstacles.  .  .  .  The  great  political  principles  which  now  govern  American  society 
undoubtedly  took  their  growth  in  the  State.  (Alexis  de  Tocqueville.  De  la  Democratic  en 
Amerique,  2  Vols.,  1835,  Vol.  I,  p.  80.) 

"At  a  meeting  of  the  Inhabitants  of  the  Town  of  Concord  being  free  and  Twenty- 
one  years  of  age  and  upward,  upon  adjournment  on  the  twentyfirst  Day  of  October,  1776, 
Ephraim  Wood  Junr  being  Moderator,  Voted  unanimously  that  the  Present  House  of 
Representatives  is  not  a  proper  Body  to  form  a  Constitution  for  this  State.  And  Voted  to 
Chuse  a  Committee  of  five  men  to  make  answer  to  the  Question  Proposed  by  the  House  of 
Representatives  of  this  State  and  to  Give  the  Reasons  why  the  Town  thinks  them  not 
a  suitable  body  for  that  Purpas,  the  persons  following  was  Chosen  the  Committee  above 
mentioned,  viz.  Ephraim  Wood  Junr,  Mr.  Nathan  Bond,  Col.  James  Barrett,  Col.  John 
Buttrick,  and  James  Barrett  esqr.  And  the  Committee  Reported  the  following  Draft  which 
being  Read  several  times  over  for  Consideration  it  then  was  Read  Resolve  by  Resolve  and 
accepted  unanimously  in  a  very  full  Town  meeting  —  the  Reasones  are  as  followes  — 

"Resolved  1st,  that  this  State  being  at  Present  destitute  of  a  properly  established 
form  of  Government,  it  is  absolutely  necessary  that  one  should  be  immediately  formed 
and  established. 

"  Resolved  secondly  that  the  supreme  Legislative,  Either  in  their  proper  capacity  or 
in  Joint  Committee  are  by  no  means  a  Body  Proper  to  form  &  Establish  a  Constitution 
or  form  of  Government  for  Reasones  following,  viz  —  first  Because  we  conceive  that 
Constitution  in  its  proper  Idea  intends  a  system  of  principals  established  to  secure  the 
subject  in  the  Possession  of  and  enjoyment  of  their  Rights  &  Privileges  against  any 
encrouchment  of  the  Governing  Part.  Secondly  Because  the  same  Body  that  forms  a 
Constitution  have  of  Consequence  a  power  to  alter  it  —  thirdly  Because  a  Constitution 
alterable  by  the  Supreme  Legislative  is  no  security  at  all  to  the  subject  against  the 
encrouchment  of  the  Governing  part  on  any  or  on  all  their  Rights  and  Privileges. 

"Resolved  thirdly  that  it  appears  to  this  Town  highly  expidient  that  a  Convention 
or  Congress  be  immediately  chosen  to  form  and  establish  a  Constitution,  by  the  Inhabi- 
tants of  the  Respective  Towns  in  this  State  being  free  and  Twentyone  years  and  upward, 
in  Proportion  as  the  Representatives  of  this  State  were  formerly  chosen ;  the  Convention 
or  Congress  not  to  consist  of  a  greater  number  than  the  house  of  assembly  of  this 
State  heretofore  might  consist  of,  except  that  Each  Town  &  District  shall  have  Liberty 
to  send  one  Representative ;  or  otherwise  as  shall  appear  meet  to  the  Inhabitants  of  this 
State  in  General. 

"  Resolved  41y.  That  when  the  Convention  or  Congress  have  formed  a  Constitution, 
they  adjourn  for  a  short  time,  and  publish  their  Proposed  Constitution  for  the  Inspection 
and  Remarks  of  the  Inhabitants  of  this  State. 

"  Resolved  51y.  That  the  Honble.  House  of  assembly  of  this  State  be  Desired  to 
recommend  it  to  the  Inhabitants  of  this  State  to  Proceed  to  Chuse  a  Convention  or 
Congress  for  the  Purpas  above  mentioned  as  soon  as  possible.  Signed  by  order  of  the 
Committee  Ephraim  Wood  Ju  Chairman,  and  the  meeting  was  Desolved  by  the 
Moderator." 
(Roger  Sherman  Hoar,  The  Invention  of  Constitutional  Conventions,  1018,  in  The  Consti- 
tutional Review,  vol.  2,  pp.  99-100.) 

The  elements  of  the  British  constitution,  which  the  American  people  claimed  as  their 
inheritance,  were  not  so  much  the  customary  forms  which  entered  into  the  structure 
of  the  British  government  as  those  chartered  privileges  which  might  serve  to  protect  them 
from  the  supervision  and  interference  of  autocratic  power.  What  they  most  desired  was 
to  be  let  alone  and  to  work  out  their  own  political  salvation.     And   it   was  precisely  when 

127 


128  THE   UNITED    STATES  I    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

and  where  they  were  least  hampered  by  foreign  control,  and  least  influenced  by  foreign 
models,  that  they  developed  those  political  features  which  have  become  the  most  dis- 
tinctive characteristics  of  the  American  constitutional  system.  (William  C.  Morey,  The 
First  State  Constitutions,  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
1893,  Vol.  4,  />•  -'.?<?•) 

The  American  colonists  inherited  the  instincts  of  the  English  race.  But  under  new 
circumstances  they  were  called  upon  to  work  out  problems  which  were  peculiar  to  their  own 
political  life:  and  as  a  consequence  of  this  we  find  that  the  constitutional  system  which 
grew  up  on  this  continent  was  an  American  and  not  a  European  product.  Even  those 
institutions  which  seem  to  have  a  general  similarity  to  those  which  are  foreign  have  here 
acquired  specific  characteristics  which  distinguish  them  from  those  belonging  to  any 
foreign  country.  (William  C.  Morey,  The  First  State  Constitutions.  Annals  of  the  American 
Academy  of  Political  and  Social  Science,   1893,   Vol.   4,  pi.   I,  p.   203.) 

The  first  State  constitutions  were  in  their  main  features  the  direct  descendants  of  the 
colonial  governments,  modified  to  the  extent  necessary  to  bring  them  into  haTmony.  with 
the  republican  spirit  of  the  people.  Every  State,  either  in  a  preamble  or  in  a  separate 
declaration  of  rights,  prefaced  its  constitution  by  a  statement  of  the  chartered  rights  upon 
which  it  had  always  insisted ;  and  many  of  them  also  declared  in  general  terms  the  demo- 
cratic principles  which  their  experience  and  reason  had  taught  them  and  which  had  been 
partly  realized  in  their  previous  governments.  (.William  C.  Morey,  The  First  State  Con- 
stitutions, Annals  of  the  American  Academy  of  Political  and  Social  Science,  1893,  Vol.  4, 
pt.   1,  p.   219.) 

In  a  previous  paper  published  in  this  journal  it  was  claimed  that  the  real  continuity  in 
the  growth  of  American  constitutional  law  could  be  seen  only  by  tracing:  first,  how  the 
charters  of  the  English  trading  companies  were  transformed  into  the  organic  laws  of  the 
early  colonies ;  second,  how  the  organic  laws  of  the  colonies  were  translated  into  the  con- 
stitutions of  the  original  States ;  and.  finally,  how  the  original  State  constitutions  con- 
tributed to  the  Constitution  of  the  Federal  Union.  (William  C.  Morey.  The  First  State 
Constitutions,  Annals  of  the  American  Academy  of  Political  and  Social  Science,  1893,  Vol. 
4,  p.  202.) 

In  applying  the  historical  method  to  the  study  of  the  American  political  system  it  is 
not  enough  to  trace  the  origin  and  growth  of  the  various  branches  of  the  federal  govern- 
ment. The  origin  of  the  forms  of  the  federal  government  presents  no  great  historical 
difficulties  to  one  who  has  carefully  studied  the  constitutional  history  of  the  early  States 
and  colonies.  He  finds  that  the  central  government  of  the  United  States,  in  its  general 
structure  and  its  various  branches,  is  scarcely  more  than  a  reproduction  on  a  higher  plane 
of  the  government  forms  existing  in  the  previous  States,  and  more  remotely  in  the  early 
colonies.  (William  C.  Morey,  The  Sources  of  American  Federalism,  American  Academy 
of  Political  and  Social  Sciences,  1895,  Vol.  6,  p.  197.) 

"  The  powers  of  the  states  depend  on  their  own  constitution ;  the  people  of  every  state 
had  the  right  to  modify  and  restrain  them  according  to  their  own  views  of  policy  or 
principle :  and  they  remain  unaltered  and  unimpaired,  except  so  far  as  they  were  granted 
to  the  government  of  the  United  States.  These  deductions  have  been  positively  recognised 
by  the  tenth  amendment."  1  Wh.  325.  "  The  powers  retained  by  the  states,  proceed  not 
from  the  people  of  America,  hut  from  the  people  of  the  several  states,  and  remain  after 
the  adoption  of  the  constitution  what  thev  were  before,  except  so  far  as  they  may  be 
abridged  by  that  instrument."  4  Wh.  193.  S.  P. :  5  Wh.  17,  54;  9  Wh.  203,  9.  "In  our 
system,  the  legislature  of  a  state  is  the  supreme  power :  in  all  cases  where  its  action  is  not 
restrained  by  the  constitution  of  the  United  States."  12  Wh.  347.  "Its  jurisdiction  is 
coextensive  with  its  territory,  coextensive  with  its  legislative  power,"  3.  Wh.  387;  "and! 
subject  to  this  grant  of  power,  adheres  to  the  territory  as  a  portion  of  sovereignty  not  yet 
given  away."  The  residuary  powers  of  legislation  are  still  in  the  state.  lb.  389_.  "  The 
sovereignty  of.  a  state  extends  to  every  thine  v-'iirh  exists  hv  its  own  authority,  or  is  intro- 
duced by  its  permission."  6  Wh.  429:  4  Pet.  564.  (Mr  Justice  Baldnnn.  A  Genera!  View 
of  the  Origin  and  Nature  of  the  Constitution  and  Government  of  the  United  States, 
1837,  PP.  I4-I5-) 


CHAPTER  VI 

ESTABLISHMENT    OF    STATE    CONSTITUTIONS 

When  the  members  of  the  Second  Continental  Congress  assembled  in  Revolution 
Philadelphia  on  May  10,  1775,  the  King's  troops  and  the  provincials  had  met 
at  Lexington  and  Concord  @n  April  19,  1775,  with  the  result  that  the  adven- 
turous sons  of  liberty  were  thronging  to  the  aid  of  Boston.  Here  on  the 
17th  of  June  of  that  year,  the  British  troops  were  worsted  at  Bunker  Hill,  only 
to  reform  and  to  carry  the  heights.  Here  they  were  hemmed  in  and  held  in 
check  by  the  volunteers  from  different  parts  of  the  country,  soon  to  be  com- 
manded and  ultimately  led  to  victory  by  George  Washington,  the  first  Com- 
mander in  Chief  of  the  American  Armies.  These  events  made  a  great  im- 
pression upon  the  members  of  Congress,  as  little  by  little  news  from  the  north 
reached  their  ears.  What  there  took  place  on  a  large  scale  was  taking  place  on 
a  smaller  scale  in  the  different  colonies.  Resistance  was  offered  to  the  royal 
authority,  its  officials  were  driven  out  by  local  leaders,  and  legitimate  govern- 
ment in  the  former  sense  of  the  term  ceased  to  exist. 

The  colonies,  soon  to  be  States,  were  anxious  as  to  the  course  they 
should  take,  and  looked  to  the  Congress  for  advice,  as  the  one  central,  al- 
though a  revolutionary  body,  which  could  keep  in  touch  with  the  continent 
and  suggest,  if  it  could  not  command,  what  should  be  done  by  each  in  the 
interest  of  the  whole.     The  far  sighted  foresaw  independence,  but  the  im-  Desire  to 

°  Prevent 

mediate  problem  before  them  was  to  replace  the  old  by  new  authority,  and  Anarchy 
to  check  anarchy,  which  often  precedes  as  well  as  follows  revolution,  by 
local  government.  Feeling  and  fearing  the  absence  of  authority,  New  Hamp- 
shire asked  permission  of  the  Congress  "  to  regulate  its  internal  police,"  and 
on  November  3rd  that  body  recommended  the  provincial  convention  of  New 
Hampshire  "  to  call  a  full  and  free  representation  of  the  people,  and  that 
the  representatives,  if  they  think  it  necessary,  establish  such  a  form  of  govern- 
ment, as,  in  their  judgment,  will  best  produce  the  happiness  of  the  people, 
and  most  effectually  secure  peace  and  good  order  in  the  province,  during  the 
continuance  of  the  present  dispute  between  G[reat]  Britain  and  the  col- 
onies." 1  The  next  day  the  Congress  gave  similar  advice  to  South  Carolina, 
and,  with  or  without  advice,  other  colonies  began  to  take  action.2 

But  the  approach  of  independence  made  general  concerted  action  advis- 


1  Journals  of  the  Continental  Congress,  Vol.  iii,  p.  319. 

2  Ibid.,  pp.  326-7. 

129 


130  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Recommen-  able,  and  therefore,  on  May   15,   1776,  the  Congress  resolved  "that  it  be 

Confess  recommended  to  the  respective  assemblies  and  conventions  of  the  United 

Colonies,  where  no  government  sufficient  to  the  exigencies  of  their  affairs 
have  been  hitherto  established,  to  adopt  such  government  as  shall,  in  the 
opinion  of  the  representatives  of  the  people,  best  conduce  to  the  happiness 
and  safety  of  their  constituents  in  particular,  and  America  in  general."  1 
Therefore  the  colonies  which  heretofore  had  not  formed  local  governments 
now  took  steps  to  do  so,  transforming  the  charter  of  the  colony  into  the  con- 
stitution of  the  State  in  the  light  of  their  experience  and  according  to  the 
needs  which  that  experience  had  disclosed.  They  were  their  own  agents  and 
had  a  free  hand.  They  did  not  need  to  wrangle  with  the  Crown  about  the 
terms,  for  the  Crown  was  excluded  from  their  deliberations.  Nor  did  they 
need  to  conform  to  the  views  of  the  Congress  as  to  the  provisions  of  their 
constitutions,  for  the  Congress,  while  it  could  recommend,  could  not  com- 
mand. The  ideas,  therefore,  which  had  slowly  taken  shape  in  the  colonies 
and  which  had  approved  themselves  in  practice,  or  which  were  thought  to 
be  advisable,  were  now  incorporated  in  the  constitutions  of  the  States.  For 
this  reason  the  constitutions  can  be  taken  as  the  solemn  and  formal  expres- 
sion of  their  views  on  government  during  the  decade  between  the  Declaration 
of  Independence  and  the  meeting  of  the  Annapolis  Convention  of  repre- 
sentatives of  five  States,  which  recommended  the  Congress  to  call  a  conven- 
tion of  all  the  States  to  frame  an  instrument  of  government  which  should 
be  a  constitution  for  the  States  in  union  and  a  constitution  for  each  of  the 
States  considered  separately. 

The  leaders  of  opinion  in  each  of  the  colonies  preserved  those  provisions 
of  the  charters,  or,  in  the  absence  of  a  charter,  the  royal  instructions,  which 
met  with  the  approval  of  their  constituents,  together  with  the  views  generally 
obtaining,  and  transferred  and  incorporated  them  in  the  constitutions  of  each 
of  the  States.  The  leaders  of  opinion,  who  had  either  framed  or  had  had  a 
hand  either  in  the  framing  or  in  the  administration  of  these  instruments  of 
government,  or  who  had  lived  under  these  constitutions  and  were  therefore 
familiar  with  their  provisions,  were  chosen  to  represent  their  States  in  the 
convention  of  the  States  called  to  meet  in  Philadelphia  on  the  second  Monday 
of  May,  1787,  to  revise  the  Articles  of  Confederation.  Because  they  drafted 
a  constitution  instead  of  contenting  themselves  with  a  revision  of  the  Articles, 
their  assembly  is  affectionately  called  the  Constitutional  Convention,  although 
it  would  with  equal  propriety  be  called,  as  it  often  is,  the  Federal  Convention, 
as,  in  view  of  the  facts,  it  should  be  termed  the  international  conference  of 
the  American  States. 

As  in  the  State  conventions  so  in  the  international  conference,  the  leaders 

i  Journals  of  the  Continental  Congress,  Vol.  iv,  p.  342,  Session  of  May  10. 


ESTABLISHMENT   OF   STATE    CONSTITUTIONS  131 

of  opinion  transferred  such  of  the  Articles  of  Confederation  as  had  justified  A™.ei;lcan 

J  Political 

themselves,  such  of  the  provisions  of  the  State  constitutions  as  seemed  ap-  ?ac^6'gound 
plicable  to  the  new  instrument  of  general  government,  and  incorporated  their 
terms  in  the  Constitution  of  the  United  States.  It  is  therefore  important  to 
consider  in  this  place  and  in  this  connection  the  fundamental  conceptions  of 
the  colonial  charters  and  of  the  State  constitutions,  in  order  that  we  may  under- 
stand the  political  attitude  and  mental  equipment  of  the  delegates  meeting 
in  conference  in  Philadelphia. 

For  the  view  that  the  States  had  a  free  hand,  that  thev  naturally  and  inevit-  influence 

-  of  Charters 

ably  formed  the  kmd  of  government  they  wanted,  that  in  so  doing  they 
modified  the  charter  in  the  form  and  to  the  extent  which  they  thought  neces- 
sary, using  it,  however,  as  the  basis  of  discussion,  as  they  had  grown  up  under 
it  and  it  was,  as  it  were,  bone  of  their  bone  and  flesh  of  their  flesh,  we  need 
only  turn  to  Connecticut  and  Rhode  Island,  without  indulging  in  speculation 
upon  this  matter.  These  two  colonies  were  so  content  with  their  charters 
that  they  did  not  form  constitutions,  in  response  to  the  recommendation  of 
Congress  of  May  15,  1776,  but  contented  themselves  with  the  change  of  a  few 
words  or  phrases  in  their  respective  charters  made  necessary  by  the  expulsion 
of  the  Crown  and  the  assumption  of  sovereignty  on  the  part  of  the  State,  un- 
til, in  1818,  the  people  of  Connecticut  formed  their  first  constitution,  and 
until  1842,  when  the  people  of  Rhode  Island  formed  their  first.  The  example 
of  Massachusetts  will  show  that,  where  the  charter  was  not  retained,  as  was 
the  case  in  the  other  colonies  possessed  of  one  upon  the  outbreak  of  the 
Revolution,  the  leaders  of  opinion  in  the  different  States  nevertheless  took  it 
as  the  basis,  omitting  the  provisions  to  which  they  objected  or  which  were 
inapplicable,  inserting  others  that  met  their  desires  or  the  needs  of  their  con- 
stituents, while  preserving  the  general  wording  with  which  they  were  familiar. 
This  can  be  made  very  clear  by  comparing  the  language  of  the  charter  dealing 
with  the  legislative  powers  of  the  province  with  the  corresponding  section  of 
the  commonwealth  of  Massachusetts,  adopted  by  the  people  thereof  in  1780. 
This  constitution  was  said  at  the  time  to  be  the  best  of  the  State  constitutions, 
and  with  amendments  it  is  still  in  force  as  the  oldest  of  all  written  constitu- 
tions. This  illustration  was  used  for  this  purpose  by  one  who  has  given  much 
thought  to  the  subject,1  and  who  chose  it,  as  he  said,  almost  at  random.  By 
the  simple  device  of  placing  in  parallel  columns  the  provisions  of  the  charter 
and  of  the  constitution  dealing  with  legislative  powers,  it  is  evident  to  the 

1  Brooks  Adams,   The  Emancipation  of  Massachusetts,  1887,  pp.  304-6. 

For  interesting  discussion  of  the  relation  of  the  charters  to  the  constitutions,  see  also 
W.  C.  Morey,  The  Genesis  of  a  Written  Constitution  in  Annals  of  the  American  Academy, 
April,  1891,  pp.  529-57;  also  J.  II.  Robinson,  The  Original  and  Derived  Features  of  the 
Constitution,  in  the  same  periodical.  October,  1890.  pp.  203-243. 

Of  interest  in  this  connection  is  Charles  Deane.  The  Forms  in  Issuing  Letters-Patent 
by  the  Crown  of  England,  Proceedings  of  the  Massachusetts  Historical  Society,  December, 
1869. 


132  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

eye  as  well  as  to  the  understanding  that  the  constitution  was  the  outgrowth  of 
the  charter. 

Charter  Constitution 
And  we  doe  further  for  vs  our  heires          And  further,  full  power  and  author- 
and  succesors  give  and  grant  to  the  said  ity  are  hereby  given  and  granted  to  the 
Governor  and  the  Great  and  Generall  said  General  Court,  from  time  to  tunc 
Court  or  Assembly  of  our  said  province  to  make,  ordain,  and  establish  all  man- 
or  territory    for    the    time    being   full  ncr  of  wholesome  and  reasonable  orr 
power  and  authority  from  time  to  time  ders,  laws,  statutes  and  ordinances,  di- 
to  make  ordaine  and  establish  all  man-  rcctions   and   instructions,    cither   with 
ner  of  wholsome   and   reasonable   or-  penalties  or  without;  so  as  the  same  be 
ders  laws  statutes  and  ordinances  di-  not  repugnant  or  contrary  to  this  consti- 
rections   and    instructions    cither   with  tution,  as  they  shall  judge  to  be  for  the 
penalties  or  without  (soc  the  same  be  good    and    ivelfare    of    this    common- 
not  repugnant  or  contrary  to  the  lawes  wealth,  and  for  the  government  and  or- 
of  this  our  realme  of  England)  as  they  dcring  thereof,  and  of  the  subjects  of 
shall  judge  to  be  for  the  welfare  of  our  the  same,  and  for  the  necessary  sup- 
said  province  or  territory  and  for  the  port   and   defence   of   the  government 
gouernment  and  ordering  thereof  and  thereof. 
of  the  people  inhabiting  or  who  shall  in- 
habit the  same  and  for  the  necessary 
support  and  defence  of  the  government 
thereof. 

The  original  charter  was,  as  we  have  seen,  that  of  a  trading  company, 
granted  to  certain  persons,  freemen  of  the  company,  with  power  to  add  to 
their  members,  with  a  general  assembly  or  court,  composed  of  the  freemen 
originally  or  subsequently  added,  meeting  some  four  times  a  year,  with  a 
smaller  body,  under  the  presidency  of  the  governor  or  treasurer,  to  administer 
the  affairs  of  the  company  in  accordance  with  the  terms  of  the  charter  and 
with  the  rules  and  regulations  laid  down  by  the  members  of  the  company  met 
in  general  court  or  assembly.  In  the  language  of  corporate  law,  the  members 
of  the  company  would  today  be  called  stockholders,  and  the  court  or  assembly 
would  be  known  as  the  meetings  of  the  stockholders ;  the  committee  elected 
out  of  their  membership  would  be  termed  the  board  of  directors,  and  the  pre- 
The  Three  siding  officer,  chairman  or  president.     In  colonial  experience,  the  members  of 

Government  the  company  were  the  freemen  of  the  colony,  the  smaller  body  the  assembly, 

composed  of  deputies  or  representatives  of  the  freemen,  whether  called  house 
of  burgesses,  assembly,  or  general  court,  with  a  more  exclusive  body,  the  sec- 
ond chamber  or  upper  house,  in  the  nature  of  a  council,  composed  of  a  re- 
stricted number  of  members  and  presided  over  by  the  governor.  In  the 
charter  all  powers,  whether  executive,  legislative  or  judicial,  are  vested  in 
the  Assembly,  in  the  smaller  body  and  the  governor ;  in  the  colony  there  is 
indeed  a  separation  of  functions,  suggesting  and  ultimately  resulting  in  the 
separation  of  powers  into  the  legislative,  executive  and  judiciary;  for,  al- 
though courts  were  established,  the  assembly  at  times,  or  the  governor  in  coun- 


ESTABLISHMENT    OF    STATE    CONSTITUTIONS  133 

cil,  acted  as  courts  of  appeal,  and  the  upper  house,  partaker  in  legislative  func- 
tions, and,  in  association  with  the  governor,  may  be  considered  as  participat- 
ing in  the  executive  power  and  the  governor  may  be  said  to  share  in  all  three. 
The  need,  however,  of  an  express  separation  and  a  limitation  of  powers 
had  made  itself  felt,  and  although  it  is  not  complete  in  all  respects,  if  indeed 
it  can  ever  be  so,  the  principle  of  separation  and  of  limitation  is  incorporated 
in  the  State  constitutions.  In  the  constitution  of  Virginia  of  July  5,  1776, 
drafted  before  the  introduction  but  adopted  the  day  after  the  Declaration  of 
Independence,  it  is  stated  immediately  after  the  preamble  that : 

The  legislative,  executive  and  judiciary  departments  shall  be  separate  and 
distinct,  so  that  neither  exercise  the  powers  properly  belonging  to  the  other.1 

And  the  reason  for  this  separation  has  never  been  more  clearly  stated,  it  is 
believed,  than  in  the  following  classic  paragraph  from  the  thirtieth  article  of 
the  Declaration  of  Rights  prefixed  to  the  first  and  present  constitution  of 
the  commonwealth  of  Massachusetts: 

In  the  government  of  this  commonwealth,  the  legislative  department  shall 
never  exercise  the  executive  and  judicial  powers,  or  either  of  them :  The 
executive  shall  never  exercise  the  legislative  and  judicial  powers,  or  either 
of  them:  The  judicial  shall  never  exercise  the  legislative  and  executive 
powers,  or  either  of  them :  to  the  end,  it  may  be  a  government  of  laws,  and 
not  of  men.2 

Therefore,  according  to  these  principles,  which  pervaded  the  States  of 
America,  there  was  to  be,  and  in  fact  there  was  a  government  of  each  of 
the  States  consisting  of  three  branches,  each  more  or  less  separate  and  dis- 
tinct. The  constitution  was  to  be  made  by  the  representatives  of  the  people 
met  in  convention  for  that  purpose,  or  to  be  drafted  by  the  legislature  on  be-  vested?" 
half  of  the  people,  inasmuch  as  the  sovereignty  which  had  formerly  vested  in 
the  Crown,  the  lords  spiritual  and  temporal  of  Great  Britain,  was,  by  the 
Declaration  of  Independence,  vested  in  the  people  of  each  of  the  States.  But 
whether  it  was  exercised  in  convention  by  representatives  specially  chosen 
to  frame  a  constitution  or  by  members  of  the  legislature,  the  act  of  one  or 
the  other  was  only  valid  if  within  the  scope  of  the  agency:  and  convention 
and  legislature  were  alike  responsible  to  the  people  as  the  ultimate  source  of 
authority. 

The  constitution  was  thus  not  a  grant  from  above  to  the  people  below 
but  a  grant  from  the  people  to  its  agents,  who  apparently  regarded  the  consti- 
tution as  in  the  nature  of  a  compact,  in  which  the  people  as  a  whole  con- 
tracted with  each  citizen,  and  each  citizen  with  the  whole  people  to  observe 
its  terms ;  and  the  goverment  of  the  body  politic  was  regarded  as  created  not 

1  The  Constitutions  of  the  Several  Independent  States  of  America,  1781,  p.  140. 

2  Ibid.,  p.  14. 


the  People 


134  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

merely  by  or  with  the  consent  of  the  citizens  but  by  their  direct  act  or  by 

their  authorized  agents  for  this  purpose.     The  organization  is  a  social  com- 

a  Social  oact  as  far  as  the  association  of  the  citizens  forming  it  is  concerned,  and  a 

and  3  Political  r  .,,,,...  . 

Compact  political  compact  as  far  as  the  government  of  the  body  politic  is  concerned. 

Because  of  this  action  on  their  part  they  are  bound  by  the  compact,  although 
on  this  theory  it  is  difficult  to  see  how  their  descendants  are  to  be  bound.  The 
act  which  they  committed,  the  association  which  they  formed  and  the  compact 
which  they  believed  they  created  are  perhaps  most  clearly  stated  in  the  pre- 
amble to  "  a  constitution  or  frame  of  government,  agreed  upon  by  the  dele- 
gates of  the  people  of  the  State  of  Massachusetts  Bay,  in  convention,  begun 
and  held  at  Cambridge,  on  the  fifth  of  September,  1779,  and  continued  by  ad- 
journments, to  the  second  of  March,  1780,"  which  preamble,  still  prefixed  to 
the  constitution  of  that  commonwealth,  reads  as  follows: 

The  end  of  the  institution,  maintenance  and  administration  of  government, 
is  to  secure  the  existence  of  the  body-politic,  to  protect  it,  and  to  furnish  the 
individuals  who  compose  it,  with  the  power  of  enjoying,  in  safety  and  tran- 
quillity, their  natural  right,  and  the  blessings  of  life :  And  whenever  these 
great  objects  are  not  obtained,  the  people  have  a  right  to  alter  the  govern- 
ment, and  to  take  measures  necessary  for  their  safety,  prosperity  and  happi- 
ness. 

The  body-politic  is  formed  by  a  voluntary  association  of  individuals;  it 
is  a  social  compact,  by  which  the  whole  people  covenants  with  each  citizen, 
and  each  citizen  with  the  whole  people,  that  all  shall  be  governed  by  certain 
laws  for  the  common  good.  It  is  the  duty  of  the  people,  therefore,  in  fram- 
ing a  constitution  of  government,  to  provide  for  an  equitable  mode  of  making 
laws,  as  well  as  for  an  impartial  interpretation,  and  a  faithful  execution  of 
them ;  that  every  man  may,  at  all  times,  find  his  security  in  them. 

We,  therefore,  the  people  of  Massachusetts,  acknowledging,  with  grate- 
ful hearts,  the  goodness  of  the  Great  Legislator  of  the  Universe,  in  affording 
us,  in  the  course  of  his  providence,  an  opportunity,  deliberately,  and  peace- 
ably, without  fraud,  violence,  or  surprize,  of  entering  into  an  original,  ex- 
plicit, and  solemn  compact  with  each  other ;  and  of  forming  a  new  constitu- 
tion of  civil  government,  for  ourselves  and  posterity ;  and  devoutly  implor- 
ing his  direction  in  so  interesting  a  design,  DO  agree  upon,  ordain,  and  es- 
tablish, the  following  Declaration  of  Rights,  and  Frame  of  Government,  as 
the  Constitution  of  the  Commonwealth  of  Massachusetts.1 

The  provisions  of  this  social  compact  were  not  matters  of  theory  with 
the  good  people  of  those  days ;  they  were  principles  of  the  constitution  to  be 
observed,  a  fact  thus  stated  by  the  eighteenth  article  of  the  Declaration  of 
Rights  of  Massachusetts: 

A  frequent  recurrence  to  the  fundamental  principles  of  the  constitution, 
and  a  constant  adherence  to  those  of  piety,  justice,  moderation,  temperance, 
industry,  and  frugality,  are  absolutely  necessary,  to  preserve  the  advantages 
of  liberty,  and  to  maintain  a  free  government.     The  people  ought,  conse- 

1  The  Constitutions  of  the  Several  Independent  States,  1781,  pp.  7-8. 


/ 


ESTABLISHMENT    OF    STATE    CONSTITUTIONS  135 

quently,  to  have  a  particular  attention  to  all  those  principles,  in  the  choice 
of  their  officers  and  representatives :  And  they  have  a  right  to  require  of 
their  lawgivers  and  magistrates,  an  exact  and  constant  observance  of  them,  in 
the  formation  and  execution  of  all  laws  necessary  for  the  good  administration 
of  the  commonwealth.1 

The  same  ideas  are  found  expressed  in  the  Bill  of  Rights  adopted  at  the 
convention  held  at  Williamsburg,  Virginia,  drafted  by  George  Mason  and 
adopted  June  12,  1776,  within  five  days  after  the  motion  made  by  Richard 
Henry  Lee,  on  behalf  of  Virginia,  for  the  Declaration  of  Independence, 
and  several  weeks  before  the  adoption  of  the  Declaration,  drafted  by  Thomas 
Jefferson,  likewise  of  Virginia.     Thus: 

Section  1.  That  all  men  are  by  nature  equally  free  and  independent,  and 
have  certain  inherent  rights  of  which,  when  they  enter  into  a  state  of  society, 
they  cannot,  by  any  compact,  deprive  or  divest  their  posterity ;  namely,  the 
enjoyment  of  life  and  liberty,  with  the  means  of  acquiring  and  possessing 
property,  and  pursuing  and  obtaining  happiness  and  safety. 

Sec.  2.  That  all  power  is  vested  in,  and  consequently  derived  from,  the 
people ;  that  magistrates  are  their  trustees  and  servants,  and  at  all  times 
amenable  to  them. 

Sec.  3.  That  government  is,  or  ought  to  be,  instituted  for  the  common 
benefit,  protection,  and  security  of  the  people,  nation  or  community ;  of  all 
the  various  modes  and  forms  of  government,  that  is  best  which  is  capable  of 
producing  the  greatest  degree  of  happiness  and  safety,  and  is  most  effectually 
secured  against  the  danger  of  maladministration ;  and  that,  when  any  govern- 
ment shall  be  found  inadequate  or  contrary  to  these  purposes,  a  majority  of 
the  community  hath  an  indubitable,  inalienable,  and  indefeasible  right  to  re- 
form, alter,  or  abolish  it,  in  such  manner  as  shall  be  judged  most  conducive 
to  the  public  weal. 

Sec.  4.  That  no  man,  or  set  of  men,  are  entitled  to  exclusive  or  separate 
emoluments  or  privileges  from  the  community,  but  in  consideration  of  public 
services ;  which,  not  being  descendible,  neither  ought  the  offices  of  magistrate, 
legislator,  or  judge  to  be  hereditary.2 

In  pursuance  of  this  right  to  choose  their  form  of  government  and  to 
make  it  adequate  to  the  purposes  for  which  it  was  instituted,  the  constitutions 
were  to  be  retained  as  long  as  they  met  the  needs  of  the  people,  and  to  be 
changed  whenever  they  failed  to  do  so.  Therefore,  provisions  were  made 
for  their  amendment.  Conventions  were  to  be  called  for  this  purpose,  or 
amendments  were  to  be  proposed  in  one  session  of  the  legislature  and  con- 
sidered at  a  subsequent  session  or  by  a  larger  majority  in  the  legislature; 
for,  the  constitution  being  a  compact  between  the  people  on  the  one  hand  and  f °™^ 
each  of  the  citizens  of  the  State  on  the  other,  was  a  fundamental  law.  It  was  £££tal 
not  an  act  of  the  legislature,  to  be  withdrawn  or  modified  by  the  simple 
majority  of  a  deliberative  assembly,  as  would  be  the  case  of  an  ordinary 
statute. 

1  Ibid.,  pp.  12-13. 

2  Thorpe,  Charters  and  Constitutions,  Vol.  7,  p.  3813;  Poore,  pp.  1908-9. 


136 


THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Revenue 
Bills 


Governor's 
Signature 


Each  of  the  thirteen  States  had  the  threefold  separation  of  powers,  and 
each  had  a  legislative  branch,  which,  with  the  exception  of  Pennsylvania, 
consisted  of  two  houses.  Each  had  a  single  executive,  called  president  or 
governor,  and  each  had  a  judiciary,  separate  and  distinct  from  both  of  these 
powers,  but  on  appeal  the  judicial  power  was  in  some  cases  exercised  in  con- 
junction with  one  or  both.  In  colonial  times  the  legislative  power  had  been 
exercised  in  an  assembly  composed  of  two  branches,  and  this  method  was 
retained,  but  each  branch,  however,  was  henceforth  elected  by  the  people,  re- 
jecting the  principle  of  appointment  of  the  upper  branch.  In  Pennsylvania, 
due  apparently  to  the  influence  of  Benjamin  Franklin,  there  was  but  one  cham- 
ber, and  Vermont,  being  without  experience,  as  it  had  not  been  a  colony  under 
the  Crown  nor  a  State  under  the  Articles  of  Confederation,  adopted  the  single 
house  from  Pennsylvania,  and  indeed  its  entire  constitution.  Each  body 
could  propose  laws,  but  the  approval  of  both  was  necessary  to  the  statute,  as 
was  the  approval  of  the  governor. 

The  colonists,  like  the  people  of  England,  had  learned  that  the  power  that 
held  the  purse  would  control  the  sword,  and  as  the  lower  house  was  elected  by 
the  people  and  the  upper  house  in  most  cases  appointed  by  the  governor  or 
Crown,  acting  for  the  Crown,  the  colonists  insisted  that  revenue  bills  should 
not  only  originate  in  the  lower  house,  but  that  they  could  not  be  controlled  by 
the  upper  house,  consisting  of  the  governor  and  appointed  members.  Hav- 
ing in  mind  this  experience,  the  constitutions  of  the  States  provided  that 
revenue  bills  should  originate  in  the  lower  not  in  the  upper  house,  although 
some  allowed  them  to  be  amended  in  the  upper  house  while  others  withheld 
this  power  from  the  second  chamber. 

The  law,  whether  it  be  an  ordinary  statute  or  a  revenue  bill,  in  most  cases 
required  the  approval  of  the  governor,  which  is  either  a  deviation  from  the 
principle  of  separation  or  is  the  cooperation  recognized  as  separate  and  dis- 
tinct in  their  nature.  It  was,  however,  appreciated  that  the  governor  might 
improperly  or  mistakenly  withhold  his  approval,  and  that  it  would  interfere 
with  the  legislature  and  be  a  detriment  to  this  system  of  government  if  he 
were  thus  allowed  to  block  the  course  of  legislation.  Therefore,  a  method 
was  devised  to  overcome  the  deadlock  between  these  two  branches  of  govern- 
ment, the  principle  of  which  appears  to  be  best  stated  in  Article  3  of  "  the 
Constitution  of  the  State  of  New  York,  established  by  the  Convention  author- 
ized and  empowered  for  that  purpose  April  20,  1777  "  —  the  model  of  pro- 
visions in  other  States  and  the  source  of  proposals  made  in  the  Constitutional 
Convention  and  the  direct  source  of  the  principle  ultimately  adopted.     Thus : 

And  whereas,  laws  inconsistent  with  the  spirit  of  this  constitution,  or  with 
the  public  good,  may  be  hastily  and  unadvisedly  passed;  be  it  ordained  that 
the  governor  for  the  time  being,  the  chancellor,  and  the  judges  of  the  supreme 


ESTABLISHMENT    OF   STATE    CONSTITUTIONS 


137 


court,  or  any  two  of  them,  together  with  the  governor,  shall  be,  and  hereby 
are,  constituted  a  council  to  revise  all  bills  about  to  be  passed  into  laws  by  the 
legislature,  and  for  that  purpose  shall  assemble  themselves,  from  time  to  time, 
when  the  legislature  shall  be  convened;  for  which,  nevertheless,  they  shall  not 
receive  any  salary  or  consideration,  under  any  pretence  whatever.  And  that 
all  bills,  which  have  passed  the  senate  and  assembly,  shall,  before  they  become 
laws,  be  presented  to  the  said  council  for  their  revisal  and  consideration ;  and 
if  upon  such  revision  and  consideration,  it  should  appear  improper  to  the  said 
council,  or  a  majority  of  them,  that  the  said  bill  should  become  a  law  of  this 
state,  that  they  return  the  same,  together  with  their  objections  thereto  in 
writing,  to  the  senate  or  house  of  assembly,  in  which  so  ever  the  same  shall 
have  originated,  who  shall  enter  the  objections  sent  down  by  the  council,  at 
large,  in  their  minutes,  and  proceed  to  reconsider  the  said  bill.  But  if  after 
such  reconsideration,  two-thirds  of  the  said  senate  or  house  of  assembly,  shall, 
notwithstanding  the  said  objections,  agree  to  pass  the  same,  it  shall,  together 
with  the  objections,  be  sent  to  the  other  branch  of  the  legislature,  where  it 
shall  also  be  reconsidered,  and  if  approved  by  two-thirds  of  the  members  pres- 
ent, shall  be  a  law. 

And  in  order  to  prevent  any  unnecessary  delays,  be  it  further  ordained, 
that  if  any  bill  shall  not  be  returned  by  the  council  within  ten  days  after  it 
shall  have  been  presented,  the  same  shall  be  a  law,  unless  the  legislature  shall, 
by  their  adjournment,  render  a  return  of  the  said  bill  within  ten  days  im- 
practicable;  in  which  case  the  bill  shall  be  returned  on  the  first  day  of  the 
meeting  of  the  legislature,  after  the  expiration  of  the  said  ten  days.1 

The  grant  of  power  to  the  legislature  was  contained  in  the  constitution  ^siative 
and  was  presumed  to  be  complete,  unless  restricted.  If  it  was  deemed  neces- 
sary or  expedient  in  the  opinion  of  the  framers  of  the  constitution  to  with- 
hold power  from  the  legislature,  this  was  likewise  done  in  the  constitution, 
and  the  declarations  of  rights  prefixed  to  the  State  constitutions  are  to  be 
considered  as  limitations  upon  the  legislative  body.  Therefore  the  powers 
to  be  enjoyed  by  the  legislative  branch  of  the  States  did  not  need  to  be  enum- 
erated in  specific  terms  as  in  the  case  of  the  Articles  of  Confederation,  or  in 
specific  and  general  terms  as  in  the  case  of  the  Constitution  of  the  United 
States,  inasmuch  as  all  powers  of  the  State  vested  in  the  people  of  the  State, 
and  only  such  powers,  could  be  exercised  by  the  union  of  the  States  as  should 
be  granted  expressly  or  by  necessary  implication.  Nevertheless,  the  people 
of  the  States  were  so  accustomed  to  a  declaration  of  rights  that  they  objected 
to  its  absence  from  the  Federal  Constitution,  and  although  no  power  could  be 
exercised  by  the  government  thereunder  unless  expressly  or  impliedly  granted, 
they  insisted  upon  amendments  to  the  Constitution,  of  which  twelve  were 
proposed  by  the  first  congress  of  the  more  perfect  Union  and  ten  adopted  by 
the  States.  These  amendments,  presumed  to  express  the  views  of  the 
framers  of  the  Constitution,  were  so  contemporaneous  with  that  instrument 
as  to  be  in  fact,  although  not  in  form,  a  declaration  of  rights  appended  in- 
stead of  being  prefixed  to  it. 

1  The  Constitutions  of  the  Several  Independent  States,  1781,  pp.  63-4. 


138 


THE  united  states:  a  study  in  international  organization 


Executive 
Powers 


Judicial 
Powers 


The  executive  power  was  vested  in  the  governor  or  president,  as  he  is 
called  in  some  of  the  constitutions,  and  he  exercised,  either  alone  or  in  con- 
junction with  a  smaller  body,  the  executive  power  of  the  State.  He  was 
the  Captain-General  or  the  Commander-in-Chief  of  the  land  and  naval  forces 
of  the  State,  and  his  duty  was  to  obey  its  laws,  to  secure  their  universal  ob- 
servance, and  to  exercise  in  his  discretion  the  rights  vested  in  him  as  executive. 
He  was  elected,  in  some  cases  directly  by  the  people,  in  others  bv  the  legis- 
lature. He  appointed  officers,  in  some  cases  by  the  advice  and  consent  of 
the  legislature  or  of  one  of  the  branches  thereof,  although  in  some  States  the 
officials,  especially  the  judges,  were  elected  by  the  legislature.  The  practice 
varied,  and  because  of  this  variation,  difficulty  was  experienced  in  hitting  upon 
an  acceptable  method  of  choosing  the  judges  in  the  Federal  Convention;  and 
because  of  the  election  of  the  executive,  either  by  the  people  of  the  State  or 
by  the  legislatures  of  the  different  States,  there  were  differences  of  opinion  in 
the  Federal  Convention  difficult  to  reconcile  because  of  diverse  practice  and  a 
lack  of  experience  in  the  case  of  the  election  of  a  president  of  the  United 
States  instead  of  an  executive  within  each  of  the  States.  In  the  case  of  the 
colonies  the  governor  was  appointed  by  the  proprietor,  as  in  the  case  of  the 
proprietary  provinces  of  Maryland  and  of  Pennsylvania,  or  appointed  by 
the  Crown,  as  in  the  colonies  generally,  or  elected  by  the  people,  as  in  the 
case  of  Rhode  Island  and  Connecticut,  in  the  same  manner  as  a  Mayor  in  a 
Corporation  in  England.  Because  of  lack  of  experience  in  the  colonies  as 
well  as  in  the  States,  the  method  of  selecting  the  president,  devised  by  the 
framers  of  the  Constitution,  broke  down  within  a  few  years  after  the  institu- 
tion of  government  under  the  Constitution,  and  has  been  twice  amended. 

In  the  matter  of  the  judiciary  it  is  sufficient  to  say  in  this  connection 
that  courts  were  organized  and  existed  in  each  of  the  colonies,  that  they  were 
appointed  by  the  proprietors  in  Maryland  and  in  Pennsylvania,  that  they 
were  appointed  by  the  Crown  generally  to  serve  during  the  pleasure  of  the 
Crown,  although  there  was  a  determined  attempt  on  the  part  of  the  colonies 
to  have  them  hold  office  during  good  behavior,  as  in  the  case  of  the  English 
judges,  appointed  after  and  in  pursuance  of  the  Bill  of  Rights  of  1689,  or 
they  were  appointed  or  elected  by  the  colonial  authorities,  as  in  the  case  of 
Connecticut  and  Rhode  Island.  The  final  court  of  appeal  was  during  the 
colonial  period  the  King  in  Council,  just  as  the  laws  of  the  colonies,  with 
the  exception  of  Connecticut  and  Rhode  Island,  were  subject  to  veto  under 
prescribed  conditions,  by  the  King  in  Council. 

Under  the  constitutions  of  the  States  there  was,  as  has  been  stated  a  judici- 
ary, whose  judges  were  ordinarily  elected  by  the  legislature,  or,  as  in  the  case 
of  Massachusetts,  appointed  by  the  governor  with  the  advice  and  consent 


ESTABLISHMENT   OF   STATE    CONSTITUTIONS  139 

of  the  Senate,  and,  because  of  colonial  experience,  they  held  office  during 
good  behavior. 

There  were  inferior  courts,  such  as  those  presided  over  by  justices  of 
the  peace;  there  were  county  courts,  there  were  superior  courts,  there  were 
courts  of  appeal,  and  there  were  courts  of  chancery,  in  most  although  not  in 
all,  and  appeal  lay  from  the  lower  to  the  higher  courts.  The  Senate  of  New 
York  was  the  ultimate  court  of  appeal,  following  the  English  practice  in 
which  the  House  of  Lords  decides  in  final  resort;  the  governor  and  three 
members  of  each  house  forming  the  court  of  appeals  in  Delaware  and  in- 
vested with  the  jurisdiction  of  the  King  in  Council.  Whether  the  officer  was 
a  legislator,  executive  or  judge,  he  was  responsible  to  some  higher  authority 
according  to  the  principles  of  the  constitutions,  subject  to  impeachment  by 
the  legislature  and,  after  trial  either  by  the  lower  house  or  separate  tribunal, 
removable  from  office.  The  governments  under  the  constitutions  were  to 
be  governments  of  law,  not  of  men,  in  a  larger  and  a  more  perfect  sense 
than  under  the  charters.  The  law  was  the  constitution,  to  be  observed  by  all 
and  to  be  administered  by  agents,  chosen  directly  or  indirectly  by  the  peo- 
ple of  each  of  the  States  possessing  the  right  of  suffrage,  which  in  most  cases 
was  limited,  not  universal.  This  law  was  indeed  subject  to  amendment,  but 
until  amended  it  was  binding  upon  the  people  who  created  it  and  the  officials 
chosen  to  administer  and  to  observe  its  provisions.  The  law  of  the  consti- 
tution was  superior  to  the  act  of  the  legislature,  inasmuch  as  the  creature  of 
the  moment  was  regarded  as  inferior  to  the  provisions  of  the  constitution  in 
accordance  with  which  the  legislature  was  created  and  adopted.  The  consti- 
tution itself  was  in  a  more  restricted  sense  the  creature  of  the  moment  and 
was  itself  inferior  to  the  creator  of  all  political  power. 

It  was  to  be  expected  that  the  States  would,  in  the  matter  of  a  constitution  ff  La" 
for  their  union,  consider  themselves  as  the  source  of  law,  that  the  instrument 
of  government  for  the  union  would  prescribe  in  explicit  terms  that  law. 
whereof  the  people  of  the  States  were  the  source  and  the  origin,  that  it  would 
derive  its  power  from  the  people  of  the  States,  either  in  convention  created 
for  that  purpose  or  by  legislatures  of  the  States  representing  the  people 
thereof,  and  that  the  form  of  government  for  the  States  would  be  based 
upon  the  form  of  government  drafted  by  the  States  themselves.  It  was 
further  to  be  expected  that  sovereign  powers  would  be  transferred  from  the 
States  and  conferred  upon  the  government  of  the  union  for  the  common  bene- 
fit of  the  States;  that  in  all  other  cases  the  States  would  reserve  to  themselves 
the  sovereign  powers  which  they  should  consider  necessary  for  their  local 
interests  and  concerns,  and  that  if  this  distribution  of  sovereign  powers  did 
not  seem  to  safeguard  sufficiently  their  local  rights  and  interests  and  con- 


140  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

cerns,  they  would  insist  upon  its  amendment ;  for  both  by  the  State  constitu- 
tions and  by  the  Declaration  of  Independence  of  the  United  States,  govern- 
ment derives  its  just  powers  from  the  consent  of  the  governed. 

As  Mr.  Justice  Matthews  has  finely,  truly,  and  impressively  said  in  deliver- 
ing the  opinion  of  the  Supreme  Court  in  Yick  Wo  v.  Hopkins  (118  U.  S., 
356,  369),  decided  in  1886: 

When  we  consider  the  nature  and  theory  of  our  institutions  of  govern- 
ment, the  principles  upon  which  they  are  supposed  to  rest,  and  review  the 
history  of  their  development,  we  are  constrained  to  conclude  that  they  do  not 
mean  to  leave  room  for  the  play  and  action  of  purely  personal  and  arbitrary 
power.  Sovereignty  itself,  is,  of  course,  not  subject  to  law,  for  it  is  the  au- 
thor and  source  of  law ;  but  in  our  system,  while  sovereign  powers  are  dele- 
gated to  the  agencies  of  government,  sovereignty  itself  remains  with  the 
people,  by  whom  and  for  whom  all  government  exists  and  acts.  And  the  law 
is  the  definition  and  limitation  of  power.  It  is,  indeed,  quite  true,  that  there 
must  always  be  lodged  somewhere,  and  in  some  person  or  body,  the  authority 
of  final  decision;  and  in  many  cases  of  mere  administration  the  responsibility 
is  purely  political,  no  appeal  lying  except  to  the  ultimate  tribunal  of  the 
public  judgment,  exercised  either  in  the  pressure  of  opinion  or  by  means  of 
the  suffrage.  But  the  fundamental  rights  to  life,  liberty,  and  the  pursuit  of 
happiness,  considered  as  individual  possessions,  are  secured  by  those  maxims 
of  constitutional  law  which  are  the  monuments  showing  the  victorious 
progress  of  the  race  in  securing  to  men  the  blessings  of  civilization  under  the 
reign  of  just  and  equal  laws,  so  that,  in  the  famous  language  of  the  Massa- 
chusetts Bill  of  Rights,  the  government  of  the  Commonwealth  "  may  be  a 
government  of  laws  and  not  of  men."  For  the  very  idea  that  one  man  may  be 
compelled  to  hold  his  life,  or  the  means  of  living,  or  any  material  right  es- 
sential to  the  enjoyment  of  life,  at  the  mere  will  of  another,  seems  to  be  in- 
tolerable in  any  country  where  freedom  prevails,  as  being  the  essence  of 
slavery  itself. 


VII 

THE  FEDERAL  CONVENTION:  AN  INTERNATIONAL 

CONFERENCE 

PhilacK  Oct.  22—1787. 
I  send  you  enclos'd  the  propos'd  new  Federal  Constitution  for  these  States.  I  was 
engag'd  4  Months  of  the  last  Summer  in  the  Convention  that  form'd  it.  It  is  now  sent 
by  Congress  to  the  several  States  for  their  Confirmation.  If  it  succeeds,  I  do  not  see 
why  you  might  not  in  Europe  carry  the  Project  of  good  Henry  the  4th  into  Execution,  by 
forming  a  Federal  Union  and  One  Grand  Republick  of  all  its  different  States  &  Kingdoms;  by 
means  of  a  like  Convention;  for  we  had  many  Interests  to  reconcile.  {Extract  from  letter 
of  Benjamin  Franklin   to  Ferdinand  Grand,  Documentary  History,   Vol.   IV,   pp.  341-342.) 

There  is  no  difficulty  in  defining  a  state  or  nation.  It  is  a  body  politic,  a  political  com- 
munity, formed  by  the  people  within  certain  boundaries;  who,  being  separated  from  all 
others,  adopt  certain  rules  for  their  own  government,  with  which  no  people  without  their 
limits  can  interfere.  The  power  of  each  terminates  at  the  line  of  separation;  each  is  neces- 
sarily supreme  within  its  own  limits:  of  consequence,  neither  can  have  any  jurisdiction  within 
the  limits  of  another,  without  its  consent.  The  name  given  to  such  community,  whether  state, 
nation,  power,  people,  or  commonwealth,  is  only  to  denote  its  locality,  as  a  self-governing  body 
of  men  united  for  their  own  internal  purposes,  if  two  or  more  think  proper  to  unite  for  com- 
mon purposes,  and  to  authorize  the  exertion  of  any  power  over  themselves,  by  a  body  com- 
posed of  delegates  or  ambassadors  of  each,  they  confederate.  Each  has  the  undoubted  right 
of  deciding,  what  portion  of  its  own  power,  it  will  authorize  to  be  exerted  in  a  meeting,  as- 
sembly, or  congress,  of  all ;  what  it  will  restrain,  prohibit,  or  qualify.  If  this  can  be  done  by 
common  consent,  the  terms  of  their  union  are  defined,  and  according  to  their  nature,  they 
form  a  mere  confederacy  of  states,  or  a  federal  government;  the  purposes  and  powers 
of  which  depend  on  the  instrument  agreed  upon.  If  they  cannot  agree,  then  each  state 
instructs  its  delegates  according  to  its  own  will,  and  sends  them  to  the  body  in  which  all 
the  states  are  assembled  by  their  deputies :  each  state  is  considered  as  present,  and  its 
will  expressed  by  the  vote  of  its  delegates.  The  congress  of  states  are  left,  in  such 
case,  to  perform  such  duties  as  are  enjoined,  and  execute  such  powers  as  are  given  to 
them,  by  their  respective  and  varying  instructions:  the  extent  of  which  is  testified  in  the 
credentials  of  the  separate  delegations,  as  before  the  confederation  of  1781.  (Mr.  Justice 
Baldwin,  A  General  View  of  the  Origin  and  Nature  of  the  Constitution  and  Government  of 
the   United  States,   1837,  p.   16.) 

His    Excellency    Thomas    Collins,    Esquire,    President,    Captain    General,    and 

Commander   in   Chief  of   the   Delaware   State ;   To   all   to  whom   these    Presents 

(Seal)     shall  come.  Greeting.     Know  Ye,  that  among  the  Laws  of  the  said  State,  passed 

by  the  General  Assembly  of  the  same,  on  the  third  day  of  February,  in  the  Year 

of  our  Lord  One  thousand  seven  hundred  and   Eighty  seven,  it  is  thus  inrolled. 

In  the  Eleventh  Year  of  the  Independence  of  the  Delaware  State 

An  Act  appointing  Deputies  from  this  State  to  the  Convention  proposed  to  be  held  in  the 
City  of  Philadelphia  for  the  Purpose  of  revising  the  Federal  Constitution. 

Whereas  the  .General  Assembly  of  this  State  are  fully  convinced  of  the  Necessity  of 
revising  the  Federal  Constitution,  and  adding  thereto  such  further  Provisions,  as  may  render 
the  same  more  adequate  to  the  Exigencies  of  the  Union :  And  Whereas  the  Legislature 
of  Virginia  have  already  passed  an  Act  of  that  Commonwealth,  appointing  and  authorizing 
certain  Commissioners  to  meet,  at  the  City  of  Philadelphia,  in  May  next,  a  Convention  of 
Commissioners  or  Deputies  from  the  different  States :  And  this  State  being  willing  and 
desirous  of  co-operating  with  the  Commonwealth  of  Virginia,  and  the  other  States  in  the 
Confederation,  in  so  useful  a  design. 

Be  it  therefore  enacted  by  the  General  Assembly  of  Delaware,  that  George  Read,  Gunning 
Bedford,  John  Dickinson,  Robert  Bassett  and  Jacob  Broom,  Esquires,  are  hereby  appointed 
Deputies  from  this  State  to  meet  in  the  Convention  of  the  Deputies  of  other  States,  to 
be  held  at  the  City  of  Philadelphia  on  the  Second  day  of  May  next :  And  the  said 
George  Read,  Gunning  Bedford,  John  Dickinson,  Richard  Bassett  and  Jacob  Broom,  Esquires, 
or   any   three   of   them,   are   hereby   constituted    and    appointed    Deputies    from   this    State, 

141 


142  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

with  Powers  to  meet  such  Deputies  as  may  be  appointed  and  authorized  by  the  other  States 
to  assemble  in  the  said  Convention  at  the  City  aforesaid,  and  to  join  with  them  in  devising, 
deliberating  on,  and  discussing,  such  Alterations  and  further  Provisions  as  may  be  neces- 
sary to  render  the  Fcederal  Constitution  adequate  to  the  Exigencies  of  the  Union;  and  in 
reporting  such  Act  or  Acts  for  that  purpose  to  the  United  States  in  Congress  Assembled, 
as  when  agreed  to  by  them,  and  duly  confirmed  by  the  several  States,  may  effectually  pro- 
vide for  the  same:  So  always  and  Provided,  that  such  Alterations  or  further  Provisions, 
or  any  of  them,  do  not  extend  to  that  part  of  the  Fifth  Article  of  the  Confederation  of 
the  said  States,  finally  ratified  on  the  first  day  of  March,  in  the  Year  One  thousand  seven 
hundred  and  eighty  one,  which  declares  that  "In  determining  Questions  in  the  United 
States  in  Congress  Assembled  each  State  shall  have  one  Vote.'' 

Vnd  be  it  enacted,  that  in  Case  any  of  the  said  Deputies  hereby  nominated,  shall  happen 
to  die,  or  to  resign  his  or  their  Appointment,  the  President  or  Commander  in  Chief  with 
the  Advice  of  the  Privy  Council,  in  the  Recess  of  the  General  Assembly,  is  hereby  au- 
thorized to  supply  such  Vacancies 

(Signed  by  Order  of  the  House  of  Assembly, 
John   Cook.   Speaker 
Signed  by  Order  of  the  Council 
Geo  Craghead,  Speaker. 

All  and  singular  which  Premises  by  the  Tenor  of  these  Presents,  I  have  caused  to  be 
Exemplified.  In  Testimony  whereof  I  have  hereunto  subscribed  my  Name,  and  caused  the 
Great-Seal  of  the  said  State  to  be  affixed  to  these  Presents,  at  New  Castle  the  Second 
day  of  April  in  the  Year  of  our  Lord  One  thousand  seven  hundred  and  eighty  seven, 
and  in  the  Eleventh  Year  of  the  Independence  of  the  United  States  of  America 

Tho3  Collins 

Attest 
Ja  Booth,  Sec7. 

(Instructions  of  Delaivare  State  to  its  Delegates  in  the  Philadelphia  Federal  Convention 
of  1787,  Documentary  History  of  the  United  States,  1786-1870,  Vol.  I,  1894,  pp.  23-25.) 

Department  of  State, 
Washington,  April  18,  1899. 

Gentlemen :  You  have  been  appointed  by  the  President  to  constitute  a  commission  to 
represent  him  at  an  international  conference  called  by  His  Imperial  Majesty  the  Emperor 
of  Russia  to  meet  at  The  Hague,  at  a  time  to  be  indicated  by  the  Government  of  the 
Netherlands,  for  the  purpose  of  discussing  the  most  efficacious  means  of  assuring  to  all 
peoples  the  "  benefits  of  a  real  and  durable  peace." 

Upon  your  arrival  at  The  Hague  you  will  effect  an  organization  of  your  commission, 
whose  records  will  be  kept  by  your  secretary,  Hon.  Frederick  W.  Holls.  All  reports  and 
communications  will  be  made  through  this  Department,  according  to  its  customary  forms, 
for  preservation  in  the  archives. 

The  programme  of  topics  suggested  by  the  Russian  minister  of  foreign  affairs  for 
discussion  at  the  conference  in  his  circular  of  December  30,  1898,  is  as  follows :  .  .  . 

I  am,  etc., 

John  Hay. 

(Instructions  to  the  American  Delegates  at  the  First  Hague  Peace  Conference,  1S99, 
Papers  Relating   to   the  Foreign  Relations  of  the   United  States,  1S99,  pp.  511,  513.) 

Department  of  State, 
Washington,  May  31,  1907. 

Gentlemen :  You  have  been  appointed  delegates  plenipotentiary  to  represent  the  United 
States  at  a  Second  Peace  Conference  which  is  to  meet  at  The  Hague  on  the  15th  of  June, 
1907.  ... 

Following  the  precedent  established  by  the  commission  to  the  First  Conference,  all  your 
reports  and  communications  to  this  Government  will  be  made  to  the  Department  of  State 
for  proper  consideration  and  eventual  preservation  in  the  archives.  The  records  of  your 
commission  will  be  kept  by  your  secretary,  Mr.  Chandler  Hale.  Should  you  be  in  doubt 
at  any  time  regarding  the  meaning  or  effect  of  these  instructions,  or  should  you  con- 
sider at  any  time  that  there  is  occasion  for  special  instructions,  you  will  communicate 
freely  with  the  Department  of  State  by  telegraph.  It  is  the  President's  earnest  wish 
that  "you   may  contribute  materially  to  the  effective  work  of  the  conference   and   that   its 


THE    FEDERAL    CONVENTION  :    AN    INTERNATIONAL   CONFERENCE  143 

deliberations  may  result  in  making  international  justice  more  certain  and  international  peace 
more   secure. 

1   am,   gentlemen,  your  obedient   servant, 

Elihu  Root. 

(Instructions  to  tin*  American  Delegates  of  the  United  States  to  the  Hague  Peace  Con- 
ference of  1907,  Foreign  Relations  of  the  United  States,  1907,  part  2,  pp.  1128,  1139.) 

Mr.  King  objected  to  one  of  the  rules  in  the  Report  authorising  any  member  to  call  for 
the  yeas  &  nays  and  have  them  entered  on  the  minutes.  He  urged  that  as  the  acts  of  the 
Convention  were  not  to  bind  the  Constituents  it  was  unnecessary  to  exhibit  this  evidence  of 
the  votes;  and  improper  as  changes  of  opinion  would  be  frequent  in  the  course  of  the  busi- 
ness &  would  fill  the  minutes  with  contradictions.  .  .  . 

The  proposed  rule  was  rejected  nem.  contradicente.  (Madison's  Notes  of  Debates  in 
the  Federal  Convention.  Session  of  Monday.  Max  28,  17S7,  Documentary  History  of  tlie 
Constitution  of  the  United  States  of  America,  1786-1870,  Vol.  Ill,  1900,  pp.  10-12.) 

As  is  the  rule  in  plenary  sessions,  each  State  shall  have  only  one  vote  in  each  Commission. 
(Rule  of  the  First  Hague  Peace  Conference.  Conference  Internationale  de  la  pair,  La 
Haye  18  mai-29  juillet  1899,  proccs-verbaux,  part  1,  p.  14.) 

Each  delegation  has  a  right  to  only  one  vote. 

The  vote  is  taken  bv  roll  call  according  to  the  alphabetical  order  of  the  Powers  repre- 
sented. (Regulations  of  the  Second  Hague  Peace  Conference,  Dcuxihne  conference  inter- 
nationale  de  la  paix,  La  Haye  15  juin-iS  octobre  1907.    Actes  et  documents,  p.  56.) 

The  Ratification  of  the  Conventions  of  nine  States,  shall  be  sufficient  for  the  Establish- 
ment of  this   Constitution  between  the   States   so   ratifying  the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of  the  States  present  the  Seventeenth 
Day  of  September  in  the  Year  of  our  Lord  one  thousand  seven  hundred  and  Eighty  seven, 
and  of  the  Independence  of  the  United  States  of  America  the  Twelfth.  In  Witness  whereof 
We  have  hereunto  subscribed  our  Names.  (The  Constitution  of  the  United  States,  Article 
I'll.) 

Article  52.  The  present  Convention  shall  be  ratified  and  the  ratifications  shall  be  de- 
posited at  The  Hague  as  soon  as  all  the  Powers  mentioned  in  Article  15  and  in  the  table 
annexed  are  in  a  position  to  do  so. 

The  deposit  of  the  ratifications  shall  take  place,  in  any  case,  on  the  30th  June,  1909, 
if  the  Powers  which  are  ready  to  ratify  furnish  nine  judges  and  nine  deputy  judges  to 
the  Court,  qualified  to  validly  constitute  a  Court.  If  not,  the  deposit  shall  be  postponed 
until  this  condition  is  fulfilled.  .  .  . 

Article  54.  The  present  Convention  shall  come  into  force  six  months  from  the  deposit 
of  the  ratifications  contemplated  in  Article  52,  paragraphs  1  and  2.  .  .  .  (Convention  No.  XII 
relating  to  the  creation  of  an  International  Prize  Court,  October  18,  1907,  adopted  by 
the  Second  Hague  Peace  Conference.) 

Two  requisites  seem  necessary  to  constitute  a  Federal  Government  in  this  its  most 
perfect  form.  On  the  one  hand,  each  of  the  members  of  the  Union  must  be  wholly  inde- 
pendent in  those  matters  which  concern  each  member  only.  On  the  other  hand,  all  must 
be  subject  to  a  common  power  in  those  matters  which  concern  the  whole  body  of  members 
collectively.  Thus  each  member  will  fix  for  itself  the  laws  of  its  criminal  jurisprudence, 
and  even  the  details  of  its  political  constitution.  And  it  will  do  this,  not  as  a  matter  of 
privilege  or  concession  from  any  higher  power,  but  as  a  matter  of  absolute  right,  by  virtue 
of  its  inherent  powers  as  an  independent  commonwealth.  Rut  in  all  matters  which  concern 
the  general  body,  the  sovereignty  of  the  several  members  will  ceajteT^  Each  member  is 
perfectly  independent  within  its  own  sphere;  but  there  is  another  sphere  in  which  its  in- 
dependence, or  rather  its  separate  existence,  vanishes.  It  is  invested  with  every  right  of 
sovereignty  on  one  class  of  subjects,  but  there  is  another  class  of  subjects  on  which  it  is 
as  incapable  of  separate  political  action  as  any  province  or  city  of  a  monarchy  or  of  an 
indivisible  republic.  The  making  of  peace  and  war,  the  sending  and  receiving  of  am- 
bassadors, generally  all  that  comes  within  the  department  of  International  Law,  will  be 
reserved  wholly  to .  the  central  power.  Indeed,  the  very  existence  of  the  several  members 
of  the  Union  will  be  diplomatically  unknown  to  foreign  nations,  which  will  never  be  called 
upon  to  deal  with  any  power  except  the  Central  Government.  A  Federal  Union,  in  short, 
will   form  one   State   in  relation  to  other  powers,  but   many   States   as   regards   its  internal 


144  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

administration.  This  complete  division  of  sovereignty  we  may  look  upon  as  essential  to  the 
absolute  perfection  of  the  Federal  ideal.  {Edward  A.  Freeman,  History  of  Federal  Govern- 
ment, from  the  foundation  of  the  Achaian  League  to  the  disruption  of  the  United  States, 
Vol.  I,  1863,  pp.  3-4.) 

The  distribution  of  powers  is  an  essential  feature  of  federalism.  The  object  for  which 
a  federal  state  is  formed  involves  a  division  of  authority  between  the  national  government 
and  the  separate  States.  The  powers  given  to  the  nation  form  in  effect  so  many  limitations 
upon  the  authority  of  the  separate  States,  and  as  it  is  not  intended  that  the  central  govern- 
ment should  have  the  opportunity  of  encroaching  upon  the  rights  retained  by  the  States, 
its  sphere  of  action  necessarily  becomes  the  object  of  rigorous  definition.  The  Constitution, 
for  instance,  of  the  United  States  delegates  special  and  closely  defined  powers  to  the 
executive,  to  the  legislature,  and  to  the  judiciary  of  the  Union,  or  in  effect  to  the  Union 
itself,  whilst  it  provides  that  the  powers  "  not  delegated  to  the  United  States  by  the  Con- 
stitution nor  prohibited  by  it  to  the  States  are  reserved  to  the  States  respectively  or  to  the 
people." 

This  is  all  the  amount  of  division  which  is  essential  to  a  federal  constitution.  But  the 
principle  of  definiton  and  limitation  of  powers  harmonises  so  well  with  the  federal  spirit 
that  it  is  generally  carried  much  farther  than  is  dictated  by  the  mere  logic  of  the  constitution. 
Thus  the  authority  assigned  to  the  United  States  under  the  Constitution  is  not  concentrated 
in  any  single  official  or  body  of  officials.  The  President  has  definite  rights,  upon  which 
neither  Congress  nor  the  judicial  department  can  encroach.  Congress  has  but  a  limited, 
indeed  a  very  limited,  power  of  legislation,  for  it  can  make  laws  upon  eighteen  topics  only; 
yet  within  its  own  sphere  it  is  independent  both  of  the  President  and  of  the  Federal  Courts. 
So,  lastly,  the  judiciary  have  their  own  powers.  They  stand  on  a  level  both  with  the 
President  and  with  Congress,  and  their  authority,  (being  directly  derived  from  the  con- 
stitution} cannot,  without  a  distinct  violation  of  law,  be  trenched  upon  either  by  the  execu- 
tive or  by  the  legislature.  (Albert  Venn  Dicey.  Introduction  to  the  Study  of  the  Law 
of  the  Constitution,   1SS5,  8th   edition,  1915,  pp.   147-149.) 

It  is  impossible  to  imagine  liberty  in  its  fulness,  if  the  people  as  a  totality,  the  country,  the 
nation,  whatever  name  may  be  preferred,  or  its  government,  is  not  independent  on  foreign 
interference.  The  country  must  have  what  the  Greeks  called  autonomy.  This  implies,  that 
the  country  must  have  the  right,  and,  of  course,  the  power,  of  establishing  that  government 
which  it  considers  best,  without  interference  from  without  or  pressure  from  above.  No 
foreigner  must  dictate ;  no  extra-governmental  principle,  no  divine  right  or  "  principle  of 
legitimacy "  must  act  in  the  choice  and  foundation  of  the  government ;  no  claim  superior 
to  that  of  the  people's,  that  is,  national  sovereignty  must  be  allowed.  This  independence 
or  national  self-government  farther  imnlies  that,  the  civil  government  of  free  choice  or 
free  acquiescence  being  established,  no  influence  from  without,  besides  that  of  freely  acknowl- 
edged justice,  fairness,  and  morality,  must  be  admitted.  There  must  then  be  the  requisite 
strength  to  resist  when  necessary.  (Francis  Licber.  On  Civil  Liberty  and  Self -Government, 
1853,  Vol.  I,  p.  73.) 

The  tendency  plainly  is  towards  a  more  centralized  government  by  a  freer  interpretation 
of  the  United  States  Constitution.  The  dangers  which  menace  us  from  this  tendency,  and 
from  what  may  be  called  democratic  abstraction,  are  met  by  such  a  book  as  this,  which 
teaches  that  there  is  no  safe  liberty  but  one  under  checks  and  guarantees,  one  which  is 
articulated,  one  which  by  institutions  of  local  self-government  educates  the  whole  people 
and  moderates  the  force  of  administrations,  one  which  sets  up  the  check  of  state  power 
within  certain  well-defined  limits  against  United  States  power,  one  which  draws  a  broad 
line  between  the  unorganized  masses  of  men  calling  themselves  the  people  and  the  people 
formed  into  bodies,  "joined  together  and  compacted"  by  constitutions  and  institutions. 
(Theodore  D.  Woolsey,  Introduction  to  Third  Edition  of  Francis  Lieber,  On  Civil  Liberty 
and  Self-Government,  1874,  p.  10.) 

We  know  no  reason  in  the  nature  of  things  why  a  state  should  be  any  the  better  for 
being  large,  and  because  throughout  the  greater  part  of  history  very  large  states  have  usually 
been  states  of  a  low  type.  (Sir  John  Robert  Seelcy,  Expansion  of  England,  1883,  American 
edition,  p.  294.) 


CHAPTER  VII 

THE    FEDERAL    CONVENTION  :    AN    INTERNATIONAL    CONFERENCE 

It  was  foreseen,  as  has  already  been  pointed  out,  that  amendments  to  the 
Articles  of  Confederation  would  need  to  be  made,  inasmuch  as  the  Union,  of 
which  the  Articles  formed  the  instrument  of  government,  was  to  be  perpetual, 
and  no  instrument  could,  even  in  the  opinion  of  its  framers,  be  looked  upon  as 
so  perfect  as  not  to  be  susceptible  of  modifications  under  changing  conditions. 
The  Articles  were,  as  a  matter  of  fact,  defective,  or  were  thought  to  be  so  by 
large  bodies  of  people  in  all  the  States.  At  any  rate,  their  provisions  were  not 
observed,  and  it  was  apparent  that  modifications  would  have  to  be  made  in  the 
framework  of  government  even  if  it  were  possible  to  preserve  the  Articles  as 
thus  amended.  "  Every  state  "  was,  to  quote  the  language  of  Article  13,  to 
"  abide  by  the  determinations  of  the  united  states  in  congress  assembled,  on  all 
questions  which  by  this  confederation  are  submitted  to  them."  1  This  unfor- 
tunately was  not  done.  It  was  next  provided  that  the  Articles  of  Confedera- 
tion should  "  be  inviolably  observed  by  every  state,"  that  the  union  should  be 
perpetual,  and  that  no  alteration  should  "  at  any  time  hereafter  be  made  in  any 
of  them ;  unless  such  alteration  be  agreed  to  in  a  congress  of  the  united  states, 
and  be  afterwards  confirmed  by  the  legislatures  of  every  state." 

The  requirement  of  unanimity,  natural  enough  and  indeed  proper  in  a  °ecn"merce 
diplomatic  document,  and  to  be  understood  unless  there  be  a  stipulation  to  and  Nav,satlon 
the  contrary,  rendered  an  amendment  of  the  Articles  very  difficult,  as  the  ex- 
perience of  well  nigh  ten  years  had  amply  shown,  and  yet  the  consent  of  all 
must  be  had  to  a  change  affecting  all,  if  that  change  were  to  take  place  and 
become  effective.  Without  recounting  the  steps  taken  to  invigorate  the  gov- 
ernment, whose  outward  weakness  was  more  apparent  than  its  inner  strength, 
it  is  sufficient  to  recall  that  Virginia,  under  the  wise  direction  of  Madison, 
took  advantage  of  the  meeting  of  delegates  of  that  State  and  of  Maryland 
concerning  the  freedom  of  navigation  of  the  Potomac  and  of  the  Chesapeake 
to  call  a  conference  of  all  the  States  for  this  purpose,  to  meet  at  Annapolis 
the  first  Monday  in  September,  1786. 

An  agreement  about  commerce  and  navigation  would  have  been  a  mere 
patch  upon  the  Articles,  which  would  otherwise  remain  as  they  were.  The 
crying  need  of  the  Confederation  was  such  a  modification  of  the  Articles  as 

1  The  Constitutions  of  the  Several  Independent  States,  1781,  pp.  201-2. 

145 


146  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

would  vest  the  general  government  with  power  to  regulate  commerce  and 
navigation,  and  by  means  thereof  or  by  other  means  to  acquire  a  revenue  for 
the  purposes  of  government.  A  revision  limited  to  a  part  of  the  field  might 
have  enabled  the  Confederation  to  continue  as  thus  modified  until  a  more  fav- 
orable occasion  should  present  itself  for  a  revision  of  the  scheme  of  govern- 
ment as  a  whole. 

Of  the  thirteen  States  invited,  nine  accepted  the  invitation  and  appointed 
delegates,  but  of  the  nine  only  the  delegates  of  five  arrived,  and  the  representa- 
tives of  Virginia,  Maryland,  New  Jersey,  Delaware  and  New  York  properly 
concluded  that  it  would  serve  no  useful  purpose  to  draft  a  plan  to  be  accepted 
by  all  when  only  five  of  the  States  were  sufficiently  interested  to  have  their 
delegates  take  part  in  the  convention.  Therefore  they  wisely  limited  their 
report  presented  to  the  States  and  likewise  to  the  Congress,  to  a  statement 
of  the  needs  of  revision,  and  they  recommended  a  conference  of  delegates 
of  all  the  States,  to  meet  in  Philadelphia  the  second  Monday  of  May  in  1787, 
"  to  take  into  consideration  the  situation  of  the  United  States,  to  devise  such 
further  provisions  as  shall  appear  to  them  necessary  to  render  the  constitution 
of  the  Federal  Government  adequate  to  the  exigencies  of  the  Union ;  and  to 
report  such  an  act  for  that  purpose  to  the  United  States  in  Congress  as- 
sembled, as,  when  agreed  to  by  them,  and  afterward  confirmed  by  the  Legis- 
latures of  every  State,  will  effectually  provide  for  the  same."  x 

As  the  initiative  came  from  the  States,  it  was  natural  that  those  States 
most  interested  in  the  revision  of  the  Articles  should  take  action,  even  before 
the  Congress  should  recommend  the  States  so  to  do.  It  was  perhaps  necessary 
to  do  this  in  order  that  the  Congress  should  see  the  advisability  of  action  on 
its  part,  lest  it  might  seem  to  be  forced  to  move,  and  thus  to  lose  the  credit 
of  directing  what  its  members  could  not  seemingly  prevent.  Therefore,  after 
the  State  of  Virginia  (October  16,  1786),  the  State  of  New  Jersey  (Novem- 
ber 23,  1786),  the  State  of  Pennsylvania  (December  30,  1786),  the  State  of 
North  Carolina  (January  6,  1787),  the  State  of  New  Hampshire  (January  17, 
1787),  the  State  of  Delaware  (February  3,  1787),  and  the  State  of  Georgia 
(February  10,  1787)  had  complied  with  the  recommendation  of  the  An- 
napolis Convention  and  had  appointed  their  delegates  to  the  meeting  in  Phila- 
delphia, the  Congress,  on  February  21,  1787,  passed  the  following  resolution: 

AYhereas  there  is  provision  in  the  Articles  of  Confederation  &  perpetual 
Union  for  making  alterations  therein  by  the  Assent  of  a  Congress  of  the 
United  Statee  and  of  the  legislatures  of  the  several  States ;  And  whereas  ex- 
perience hath  evinced  that  there  are  defects  in  the  present  Confederation,  as 
a  mean  to  remedy  which  several  of  the  States  and  particularly  the  State  of 
New  York  by  express  instructions  to  their  delegates  in  Congress  have  sug- 
gested a  convention  for  the  purposes  expressed  in  the  following  resolution  and 

i  Elliot's  Debates.  Vol.  i,  p.  118. 


THE    FEDERAL    CONVENTION  :    AN    INTERNATIONAL    CONFERENCE  147 

such  Convention  appearing  to  be  the  most  probable  mean  of  establishing  in 
these  states  a  firm  national  government. 

Resolved  that  in  the  opinion  of  Congress  it  is  expedient  that  on  the  second 
Monday  in  May  next  a  Convention  of  delegates  who  shall  have  been  ap- 
pointed by  the  several  states  be  held  at  Philadelphia  for  the  sole  and  express 
purpose  of  revising  the  Articles  of  Confederation  and  reporting  to  Con- 
gress and  the  several  legislatures  such  alterations  and  provisions  therein  as 
shall  when  agreed  to  in  Congress  and  confirmed  by  the  states  render  the  fed- 
eral constitution  adequate  to  the  exigencies  of  Government  &  the  preserva- 
tion of  the  Union.1 

In  consequence  of  this  action  of  the  Congress,  the  State  of  New  York 
(February  28,  1787),  the  State  of  South  Carolina  (March  8,  1787),  the 
State  of  Massachusetts  (April  9,  1787),  the  State  of  Connecticut  (May  2, 
1787),  and  the  State  of  Maryland  (May  26,  1787)  acted  favorably  upon  the  May_ 
recommendation  and  appointed  delegates  to  the  conference  of  the  States  in  17&r 
Philadelphia,  thus  accounting  for  all  the  States  with  the  exception  of  the  State 
of  Rhode  Island,  which,  in  its  sovereign  pleasure,  or  perhaps  it  may  be  more 
accurate  to  say,  displeasure,  refused  to  cast  its  lot  with  its  sister  States,  al- 
though the  better  elements  of  the  State,  if  their  own  testimony  is  to  be  taken, 
had  attempted  to  line  up  the  little  Commonwealth  with  its  equals,  if  not  its 
betters. 

The  second  Monday  of  May  came,  but  the  delegates  did  not.  On  the  14th 
day  of  the  month,  the  Virginian  delegation,  with  George  Washington  at  its 
head,  arrived  at  Philadelphia  on  time,  where  they  were  met  by  the  Pennsyl- 
vanian  delegates,  who  would  have  found  it  difficult  to  be  elsewhere.  A  ma- 
jority of  the  States  was  obtained  for  the  first  time  on  May  25,  1787.  On  that 
day  the  conference  held  the  first  of  its  sessions,  which  was  not  to  revise  the 
Articles  of  Confederation  and  to  make  them  adequate  for  the  purposes  of 
union,  but  to  create  a  more  perfect  Union,  the  model,  as  many  think,  of  or- 
ganization for  the  society  of  nations. 

In  the  interval  between  these  two  periods  the  Virginian  delegation  met 
some  two  or  three  hours  a  day  to  consider  the  questions  to  come  before  the 
convention  and  to  put  their  views  in  the  form  of  resolutions  which  might 
serve,  in  the  absence  of  others  better,  as  a  basis  of  discussion  and  of  the  future 
instrument  of  government.  They  also  met  and  exchanged  views  with  the  dele- 
gates of  the  other  States  as  they  arrived,  and  especially,  it  would  seem,  entered 
into  friendly  and  confidential  relations  with  the  Pennsylvanian  members.  An 
incident  which  happened  before  the  opening  of  the  conference  is  recorded  by 
Mr.  Madison,  a  member  of  the  Virginian  delegation  destined  to  be  the  re- 
porter of  the  conference  and  to  be  regarded  as  the  father  of  the  Constitution, 
just  as  General  Washington,  another  Virginian  delegate,  was  and  is  the  father 
of  the  country.     Interesting  in  itself,  the  incident  has  a  permanent  value  in 

1  Documentary  History  of  the  Constitution  of  the  United  States  of  America,  Vol.  iv,  p. 
78. 


148 


THE  united  states:  a  study  in  international  organization 


Large  and 
Small  States 


Organization 
of  the  Federal 
Convention 


that  it  shows  the  attitude  of  some  of  the  delegates  of  the  larger  States  which, 
it  is  believed,  was  shared  consciously  or  unconsciously  by  that  class  of  repre- 
sentatives. It  also  discloses  their  attitude  in  advance  and  explains  their  pur- 
pose in  the  course  of  proceedings. 

It  appears  that  Gouverneur  Morris,  with  the  support  of  Robert  Morris 
and  of  others  from  Pennsylvania,  opposed  "  as  unreasonable  "  the  concession 
of  an  equal  vote  to  the  little  States,  on  the  ground  that,  armed  with  equality, 
the  delegates  of  the  smaller  States  would  be  enabled  "  to  negative  every  good 
system  of  government  "  which  the  delegates  of  the  larger  States  might  pro- 
pose, which,  in  the  opinion  of  such  delegates  "  must  in  the  nature  of  things  be 
founded  on  a  violation  of  that  equality."  The  Virginian  delegates,  however, 
forecast  the  consequences  of  such  action  on  the  part  of  the  larger  States  at 
the  opening  of  the  convention,  as  likely  to  "  beget  fatal  altercations  between  the 
large  and  small  States."  They  felt  that  the  attempt  if  made  at  this  time 
would  fail,  whereas  the  smaller  States  might,  in  the  course  of  debate,  be 
prevailed  upon  "  to  give  up  their  equality  for  the  sake  of  an  effective  govern- 
ment." They  therefore,  to  quote  James  Madison's  account  of  the  incident, 
"  discountenanced  and  stifled  the  project."  * 

It  is,  however,  important  to  bear  this  incident  in  mind,  as  it  shows  the 
atmosphere  of  the  convention,  overcast  before  its  opening  and  soon  to  be 
charged  with  electricity.  The  opposition  between  the  large  and  the  small  ap- 
pears to  be  inherent  in  the  nature  of  things  and  to  come  to  the  surface  during 
the  proceedings  of  an  international  conference.  The  little  States  insist  upon 
equality  of  representation,  and  upon  their  equality  of  right  to  present  their 
views  and  to  have  them  debated,  even  although  if  treated  with  courtesy  and 
kindly  consideration  they  are  disposed  to  adopt  the  projects  of  the  larger 
States  if  convinced  that  they  are  meant  for  the  good  of  the  whole. 

On  the  25th  of  May  the  delegates  of  seven  States,  being  a  majority  of  the 
original  thirteen  which  had  declared  their  independence  of  the  mother  country 
on  July  4,  1776,  and  whose  independence  was  recognized  by  the  mother  country 
on  September  7,  1783,  had  arrived,  and  on  that  day  they  proceeded  to  the  hall 
in  which  that  independence  had  been  proclaimed  and,  in  conference,  to  hit 
upon  a  plan  for  its  maintenance,  collectively  as  well  as  individually.  As  is  the 
wont  of  international  conferences,  the  leading  member  of  the  State  in  which 
the  conference  was  held  opened  proceedings.  In  the  place  of  Benjamin  Frank- 
lin, President  of  Pennsylvania,  unavoidably  absent,  Robert  Morris,  a  dele- 
gate from  that  State,  to  quote  Mr.  Madison's  Notes,  "  informed  the  mem- 
bers assembled  that  by  the  instruction  &  in  behalf  of  the  deputation  of  Pena. 
he  proposed  George  Washington,  Esqr.,  late  Commander  in  chief  for  presi- 


1  Madison  Papers,  Gilpin  ed.,  1841,  Vol.  ii,  p.  726  note. 


THE    FEDERAL    CONVENTION  I    AN    INTERNATIONAL    CONFERENCE  149 

dent  of  the  Convention."  *  As  is  also  the  wont  of  international  conferences,  international 
the  delegate  of  another  and  a  leading  State  seconded  the  nomination.  In 
this  instance  it  was  John  Rutledge  of  South  Carolina  who  expressed,  as  is 
ordinarily  done  on  such  occasions,  his  confidence  that  the  choice  would  be 
unanimous,  observing  with  greater  truth  than  is  customary,  "  that  the  presence 
of  Gen1.  Washington  forbade  any  observations  on  the  occasion  which  might 
otherwise  be  proper."  2  On  this  transaction  Mr.  Madison  makes  the  proper 
comment  that  "  the  nomination  came  with  particular  grace  from  Penna,  as 
Docr.  Franklin  alone  could  have  been  thought  of  as  a  competitor.  The  Docr. 
was  himself  to  have  made  the  nomination  of  General  Washington,  but  the 
state  of  the  weather  and  of  his  health  confined  him  to  his  house."  ?  And  it 
may  be  said  in  this  connection  that  Washington  and  Franklin  were,  by  their 
respective  achievements,  the  two  great  personalities  in  the  convention,  in 
which,  according  to  the  account  of  a  contemporary,  they  moved  with  great 
caution  and  circumspection. 

As  is  not  the  wont,  however,  of  international  conferences,  the  election  was 
by  ballot,  which,  in  the  case  of  Washington,  could  only  result  in  a  unanimous 
election,  after  which  he  was  conducted  to  the  chair  by  Messrs.  Morris  and 
Rutledge.  Thereupon,  "  in  a  very  emphatic  manner,"  to  quote  Mr.  Madison, 
"  he  thanked  the  Convention  for  the  honor  they  had  conferred  on  him,  re- 
minded them  of  the  novelty  of  the  scene  of  business  in  which  he  was  to  act, 
lamented  his  want  of  better  qualifications,  and  claimed  the  indulgence  of  the 
House  towards  the  involuntary  errors  which  his  inexperience  might  oc- 
casion." *  This  language  is  also  the  language  of  international  conferences, 
but  it  was  invariably  Washington's  attitude  toward  himself  in  private,  and  in 
public,  on  the  three  great  occasions  in  which  he  appeared  before  his  country- 
men, here,  on  accepting  the  chief  command  of  the  American  armies,  and  on 
being  proposed  and  elected  President  of  the  United  States. 

As  was  also  the  wont  of  international  conferences,  a  delegate  from  Penn- 
sylvania, in  this  instance  James  Wilson,  proposed  the  appointment  of  a  secre- 
tary and  nominated  William  Temple  Franklin,  whose  selection  would  have 
been  agreeable  to  the  authorities  of  Pennsylvania,  inasmuch  as  he  was  the 
grandson  of  its  venerable  chief  executive.  But  as  the  nomination  was  made 
in  a  conference  of  the  American  States,  accustomed  to  think  and  to  act  for 
themselves  and  to  choose  those  whom  they  really  wanted,  not  those  who  were 
imposed  upon  them,  Mr.  Franklin's  nomination  did  not  result  in  an  election. 
"  Colonel,"  as  Mr.  Madison  calls  him,  but  as  we  should  say  today,  Alexander 

1  Documentary  History  of  the  Constitution,  Vol.  iii,  p.  8. 

=  Ibid. 

s  Ibid.,  p.  9. 

*lbid.,vv-  8-9. 


to 


150  THE   UNITED   STATES:    A    STUDY    IN    INTERNATIONAL    ORGANIZATION 

Hamilton,  nominated  Major  Jackson,  and  upon  ballot  the  major  had  five  votes 
to  the  grandson's  two. 

The  convention  had  a  president  and  a  secretary ;  it  did  not  as  yet  have, 
members.  The  credentials  of  those  appointed  by  the  States  were  presented 
and  read,  whereupon  the  deputies  there  assembled  constituted  the  conference. 
As  the  members  acted  under  instructions  from  their  States,  in  accordance 
with  the  custom  of  international  assemblies,  it  is  desirable  to  give  some  at- 
tention to  the  form  and  content  of  their  credentials.  First  of  Virginia,  to 
follow  the  order  of  the  States  accepting  the  recommendation  of  the  Annapolis 
Convention,  subsequently  approved  by  the  Congress. 
instructions  The  purpose  is  stated  and  the  delegates  are  instructed  "  to  meet  such  Depu- 

Deiegates  ties  as  may  be  appointed  and  authorized  by  other  States  to  assemble  in  Con- 

vention at  Philadelphia  .  .  .  and  to  join  with  them  in  devising  and  discussing 
all  such  Alterations  and  farther  Provisions  as  may  be  necessary  to  render  the 
Fcederal  Constitution  adequate  to  the  Exigencies  of  the  Union  and  in  report- 
ing such  an  Act  for  that  purpose  to  the  United  States  in  Congress  as  when 
agreed  to  by  them  and  duly  confirmed  by  the  several  States  will  effectually  pro- 
vide for  the  same."  1 

The  Pennsylvania  delegates  were  constituted  and  appointed  "  with  Powers 
to  meet  such  Deputies  as  may  be  appointed  and  authorized  by  the  other  States 
.  .  .  and  to  join  with  them  in  devising,  deliberating  on,  and  discussing,  all 
such  alterations  and  further  Provisions,  as  may  be  necessary  to  render  the 
fcederal  Constitution  fully  adequate  to  the  exigencies  of  the  Union."  2 

The  State  of  North  Carolina  authorized  its  deputies  "  to  meet  and  confer 
with  such  Deputies  as  may  be  appointed  by  the  other  States  for  similar  pur- 
poses, and  with  them  to  discuss  and  decide  upon  the  most  effectual  means  to 
remove  the  defects  of  our  Fcederal  Union,  and  to  procure  the  enlarged  Pur- 
poses which  it  was  intended  to  effect,  and  that  they  report  such  an  Act  to  the 
General  Assembly  of  this  State,  as  when  agreed  to  by  them,  will  effectually 
provide  for  the  same."  3 

The  delegates  of  New  Hampshire  were  appointed  and  authorized  "  to  dis- 
cuss and  decide  upon  the  most  effectual  means  to  remedy  the  defects  of  our 
federal  Union."  4 

The  instructions  to  the  delegates  of  Delaware  contained  a  clause  which 
showed  the  intention  of  that  little  commonwealth  to  maintain  not  only  the 
independence  but  the  equalitv  which  it  had  gained  for  itself,  in  conjunction 
with  the  other  States,  through  a  conflict  of  seven  years.  Thus,  the  deputies 
of  the  smallest  of  the  States  attending  the  Convention, —  for  Rhode  Island, 

1  Documentary  History,  Vol.  i,  p.  28. 

id.,  p.  20.  " 
*Ibid.,  p.  35. 
*  Ibid.,  p.  10. 


THE    FEDERAL    CONVENTION:    AN    INTERNATIONAL    CONFERENCE  151 

as  previously  stated,  failed  to  appear,  —  were  appointed  and  authorized  to 
meet  the  deputies  appointed  and  authorized  by  the  other  States,  "  and  to  join 
with  them  in  devising,  deliberating  on,  and  discussing,  such  Alterations  and 
further  Provisions  as  may  be  necessary  to  render  the  Fcederal  Constitution 
adequate  to  the  Exigencies  of  the  Union.  .  .  :  So  always  and  Provided,  that 
such  Alterations  or  further  Provisions,  or  any  of  them,  do  not  extend  to  that 
part  of  the  Fifth  Article  of  the  Confederation  of  the  said  States,  finally  rati- 
fied on  the  first  day  of  March,  in  the  Year  One  thousand  seven  hundred  and 
eighty  one,  which  declares  that  '  In  determining  Questions  in  the  United 
States  in  Congress  Assembled  each  State  shall  have  one  vote.'  "  * 

The  reason  for  this  action  on  behalf  of  Delaware  is  clearly  stated  in  a  letter 
dated  New  Castle,  January  17,  1787,  from  George  Read,  soon  to  be  head  of 
the  Delaware  delegation,  to  John  Dickinson,  soon  to  be  its  leading  member, 
as  he  already  was  a  leading  citizen  of  the  United  States,  from  which  the  fol- 
lowing passages  are  quoted  by  way  of  comment : 

Finding-  that  Virginia  hath  again  taken  the  lead  in  the  proposed  conven- 
tion at  Philadelphia  in  May,  as  recommended  in  our  report  when  at  An- 
napolis, ...  it  occurred  to  me,  as  a  prudent  measure  on  the  part  of  our 
State,  that  its  Legislature  should,  in  the  act  of  appointment,  so  far  restrain 
the  powers  of  the  commissioners,  whom  they  shall  name  on  this  service,  as 
that  they  may  not  extend  to  any  alteration  in  that  part  of  the  fifth  article  of 
the  present  Confederation,  .  .  .  that  is,  that  such  clause  shall  be  preserved  or 
inserted,  for  the  like  purpose,  in  any  revision  that  shall  be  made  and  agreed 
to  in  the  proposed  convention.2 

The  reason  for  this  suggestion,  inuring  to  the  benefit  of  the  small  States 
generally  as  well  as  to  Delaware,  and  which  John  Dickinson,  perhaps  more 
than  any  other  man,  made  a  reality,  is  thus  stated  by  Mr.  Read,  who,  curiously 
enough,  in  the  Convention  went  over  to  the  larger  States : 

I  conceive  our  existence  as  a  State  will  depend  upon  our  preserving  such 
rights,  for  I  consider  the  acts  of  Congress  hitherto,  as  to  the  ungranted  lands 
in  most  of  the  larger  States,  as  sacrificing  the  just  claims  of  the  smaller  and 
bounded  States  to  a  proportional  share  therein,  for  the  purpose  of  discharg- 
ing the  national  debt  incurred  during  the  war ;  and  such  is  my  jealousy  of 
most  of  the  larger  States,  that  I  would  trust  nothing  to  their  candor,  gen- 
erosity, or  ideas  of  public  justice  in  behalf  of  this  State,  from  what  has  here- 
tofore happened,  and  which,  I  presume,  hath  not  escaped  your  notice.  .  .  . 
Persuaded  I  am,  from  what  I  have  seen  occasionally  in  the  public  prints  and 
heard  in  private  conversations,  that  the  voice  of  the  States  will  be  one  of 
the  subjects  of  revision,  and  in  a  meeting  where  there  will  be  so  great  an 
interested  majority,  I  suspect  the  argument  or  oratory  of  the  smaller  State 
commissioners  will  avail  little.  In  such  circumstances  I  conceive  it  will 
relieve  the  commissioners  of  the  State  from  disagreeable  argumentation,  as 
well  as  prevent  the  downfall  of  the  State,  which  would  at  once  become  a 

1  Farrand,  Records  of  the  Federal  Convention,  Vol.  iii,  p.  575. 

-  \\  .  T.  Read,  life  and  Correspondence  of  Georqe  Read,  pp.  4.38-9. 


152  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

cypher  in  the  union,  and  have  no  chance  of  an  accession  of  district,  or  even 
citizens.  .  .  . 

The  clause  in  the  instructions  to  the  Delaware  delegates,  inserted  upon  the 
suggestion  of  Mr.  Read,  was  not  lost  upon  the  delegates  in  the  convention,  as 
appears  from  the  testimony  of  Mr.  Madison,  who  says  in  his  Notes  that  "  on 
reading  the  credentials  of  the  deputies  it  was  noticed  that  those  from  Dela- 
ware were  prohibited  from  changing  the  Article  in  the  Confederation  establish- 
ing an  equality  of  votes  among  the  States."  1  This  was  the  cloud  no  larger 
than  a  man's  hand  which  portended  approaching  storm. 

The  instructions  to  the  delegates  from  Georgia  contained  the  usual  author- 
ization, with,  however,  the  statement  following  the  date  of  the  year  "of  our 
Sovereignty  and  Independence  the  Eleventh."  2  And  the  instructions  of  New 
York  were  similar,  omitting  the  "  year  of  our  Lord  "  and  substituting  "  this 
Ninth  day  of  May  in  the  Eleventh  Year  of  the  Independence  of  the  said 
State."  3  " 

The  instructions  from  the  State  of  South  Carolina  did  not  differ  materially 
from  those  of  the  other  States,  except  that  the  delegates  were  to  "  join  with 
such  Deputies  or  Commissioners  (they  being  duly  authorized  and  empowered) 
in  devising  and  discussing  all  such  Alterations,  Clauses,  Articles  and  Pro- 
visions, as  may  be  thought  necessary  to  render  the  Fcederal  Constitution  en- 
tirely adequate  to  the  actual  Situation  and  future  good  Government  of  the 
confederated  States."4 

The  Commonwealth  of  Massachusetts  contented  itself  in  its  instructions 
with  quoting  the  resolution  of  Congress  and  authorizing  its  representatives 
"  to  meet  such  Delegates  as  may  be  appointed  by  the  other  or  any  of  the  other 
States  in  the  Union  to  meet  in  Convention  at  Philadelphia  at  the  time  and  for 
the  purposes  aforesaid."  5 

The  instructions  to  the  Connecticut  delegates,  William  Samuel  Johnson, 
Roger  Sherman,  and  Oliver  Ellsworth,  to  whose  efforts  on  crucial  occasions 
the  Constitution  is  largely  due,  provide  that  the  three  delegates  to  the  conven- 
tion, or  any  one  of  them  in  case  of  sickness  or  accident,  are  authorized  and  em- 
powered "  to  Represent  this  State  therein,  and  to  confer  with  such  Delegates 
appointed  by  the  several  States,  for  the  purposes  mentioned  in  the  said  Act 
of  Congress  that  may  be  present  and  duly  empowered  to  act  in  said  Con- 
vention, and  to  discuss  upon  such  Alterations  and  Provisions  agreeable  to 
the  general  Principles  of  Republican  Government  as  they  shall  think  proper 
to  render  the  federal  Constitution  adequate  to  the  exigencies  of  Govern- 
ment and,  the  preservation  of  the  Union."  6 

1  Documentary  History,  Vol.  iii,  p.  9. 

2  Ibid.,  Vol.  i,"  p.  44. 

»  Ibid.,  p    14  5Ibid.,  p.  11. 

4  Ibid.,  p.  38.  c  Ibid.,  p.  13. 


THE    FEDERAL    CONVENTION:    AN    INTERNATIONAL   CONFERENCE  153 

And  finally,  the  Maryland  delegates  are  instructed  to  join  with  the  other 
delegates  "  in  considering  such  Alterations  and  further  Provisions  as  may 
be  necessary  to  render  the  Foederal  Constitution  adequate  to  the  Exigencies 
of  the  Union  and  in  reporting  such  an  Act  for  that  purpose  to  the  United 
States  in  Congress  Assembled  as  when  agreed  to  by  them,  and  duly  con- 
firmed by  the  several  States  will  effectually  provide  for  the  same,  and  the 
said  Deputies  or  such  of  them  as  shall  attend  the  said  Convention  shall 
have  full  Power  to  represent  this  State  for  the  Purposes  aforesaid,  and  the 
said  Deputies  are  hereby  directed  to  report  the  Proceedings  of  the  said  Con- 
vention, and  any  Act  agreed  to  therein,  to  the  next  session  of  the  General 
Assembly  of  this  State."  1 

Tt  is  apparent  from  these  instructions  that  the  convention  in  Philadel- 
phia was  a  conference  of  the  twelve  States,  continental  if  not  international 
in  the  strict  sense  of  the  word ;  that  the  delegates  represented  the  States  in 
attendance  and,  as  delegates,  acted  in  accordance  with  specific  instructions; 
that  the  action  of  the  convention,  in  whatever  form  its  proceedings  might 
be  couched,  was  a  recommendation  to  the  Congress  and  to  the  States;  and 
that  it  derived  whatever  validity  it  would  possess  by  the  ratification  of  each 
of  the  States  attending  the  conference  or,  as  in  the  case  of  Rhode  Island, 
adhering  to  its  recommendation,  as  is  the  custom  of  States  invited  to  but 
not  actually  participating  in  an  international  gathering.  The  clause  con- 
cerning equality  in  the  instructions  to  the  delegates  of  Delaware  was  a 
warning  to  the  larger  and  a  rallying  point  for  the  delegates  of  the  smaller 
States,  when  it  appeared  to  them  that  the  larger  States  were  intent  on  swal- 
lowing them  up  or  merging  them  in  a  common  union  in  which  the  larger 
States  would  hold  the  whip  hand. 

With  the  reading  of  the  credentials  and  the  seating  of  the  persons  whose 
names  were  contained  in  them,  there  were  present  members  appointed  by 
the  States  for  the  convention.  To  act  in  an  expeditious  and  orderly  manner, 
and  to  accomplish  the  purpose  for  which  it  was  called,  it  was  necessary  to 
have  a  system  of  rules  and  procedure.  Therefore  the  next  step  was,  to 
quote  Mr.  Madison's  Notes,  "  the  appointment  of  a  committee  ...  to  pre- 
pare standing  rules  &  orders."  2  The  Convention  therefore  adjourned  on  c 
Friday  the  25th  to  Monday  the  28th,  in  order  to  give  the  committee  time 
to  get  to  work,  and  at  the  meeting  of  the  latter  date  the  rules  as  reported 
were  taken  up  and  adopted,  with  an  amendment  striking  out  the  call  for 
yeas  and  nays  and  having  them  entered  on  the  minutes  at  the  request  of 
any  member.  This  procedure  would  have  been  proper  enough  in  a  par- 
liamentary assembly,  where  each  member  represented  himself,  but  improper 

i  Ibid.,  pp.  25-6. 
-Ibid.,  Vol.  iii.  p.  9. 


R'.ile 
and  Orders 


154  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

in  an  international  conference,  where  the  member  represented  the  State. 
The  reasons,  differing  in  form  though  not  in  effect  from  the  one  already 
given,  were  thus  stated  by  Mr.  King  of  Massachusetts,  who  moved  the 
amendment : 

As  the  acts  of  the  Convention  were  not  to  bind  the  Constituents,  it  was 
unnecessary  to  exhibit  this  evidence  of  the  votes ;  and  improper  as  changes  of 
opinion  would  be  frequent  in  the  course  of  the  business  &  would  fill  the  min- 
utes with  contradictions. 

To  which  Mr.  Mason  of  Virginia  added: 

That  such  a  record  of  the  opinions  of  members  would  be  an  obstacle  to  a 
change  of  them  on  conviction ;  and  in  case  of  its  being  hereafter  promulged 
must  furnish  handles  to  the  adversaries  of  the  Result  of  the  Meeting. 

The  standing  rules  and  orders  as  amended  in  this  particular  are  thus 
worded : 

A  House  to  do  business  shall  consist  of  the  Deputies  of  not  less  than  seven 
States ;  and  all  questions  shall  be  decided  by  the  greater  number  of  these 
which  shall  be  fully  represented;  but  a  less  number  than  seven  may  adjourn 
from  day  to  day. 

Immediately  after  the  President  shall  have  taken  the  chair,  and  the  mem- 
bers their  seats,  the  minutes  of  the  preceding  day  shall  be  read  by  the  Secre- 
tary. 

Every  member,  rising  to  speak,  shall  address  the  President;  and  whilst  he 
shall  be  speaking,  none  shall  pass  between  them,  or  hold  discourse  with  an- 
other, or  read  a  book,  pamphlet  or  paper,  printed  or  manuscript —  and  of  two 
members  rising  at  the  same  time,  the  President  shall  name  him  who  shall  be 
first  heard. 

A  member  shall  not  speak  oftener  than  twice,  without  special  leave,  upon 
the  same  question ;  and  not  the  second  time,  before  every  other,  who  had  been 
silent,  shall  have  been  heard,  if  he  choose  to  speak  upon  the  subject. 

A  motion  made  and  seconded,  shall  be  repeated,  and  if  written,  as  it  shall 
be  when  any  member  shall  so  require,  read  aloud  by  the  Secretary,  before  it 
shall  lie  debated ;  and  may  be  withdrawn  at  any  time,  before  the  vote  upon  it 
shall  have  been  declared. 

Orders  of  the  day  shall  be  read  next  after  the  minutes,  and  either  dis- 
cussed or  postponed,  before  any  other  business  shall  be  introduced. 

When  a  debate  shall  arise  upon  a  question,  no  motion,  other  than  to  amend 
the  question,  to  commit  it,  or  to  postpone  the  debate  shall  be  received. 

A  question  which  is  complicated,  shall,  at  the  request  of  any  member,  be 
divided,  and  put  separately  on  the  propositions  of  which  it  is  compounded. 

The  determination  of  a  question,  altho'  fully  debated,  shall  be  postponed, 
if  the  deputies  of  any  State  desire  it  until  the  next  day. 

A  writing  which  contains  any  matter  brought  on  to  be  considered,  shall 
be  read  once  throughout  for  information,  then  by  paragraphs  be  debated, 
and  again,  with  the  amendments,  if  any,  made  on  the  second  reading;  and  af- 
terwards the  question  shall  be  put  on  the  whole,  amended,  or  approved  in 
its  original  form,  as  the  case  shall  be. 

Committees  shall  be  appointed  by  ballot;  and  the  members  who  have  the 


THE    FEDERAL    CONVENTION:    AN    INTERNATIONAL    CONFERENCE  155 

greatest  number  of  ballots,  altho'  not  a  majority  of  the  votes  present,  shall  be 
the  Committee  —  When  two  or  more  members  have  an  equal  number  of  votes, 
the  member  standing  first  on  the  list  in  the  order  of  taking  down  the  ballots, 
shall  be  preferred. 

A  member  may  be  called  to  order  by  any  other  member,  as  well  as  by  the 
President ;  and  may  be  allowed  to  explain  his  conduct  or  expressions  supposed 
to  be  reprehensible.  And  all  questions  of  order  shall  be  decided  by  the  Presi- 
dent without  appeal  or  debate. 

Upon  a  question  to  adjourn  for  the  day,  which  may  be  made  at  any  time, 
if  it  be  seconded,  the  question  shall  be  put  without  a  debate. 

When  the  House  shall  adjourn,  every  member  shall  stand  in  his  place, 
until  the  President  pass  him.1 

It  occurred  to  Mr.  Pierce  Butler,  of  South  Carolina,  that  it  would  be 
advisable  to  provide  against  "  interruption  of  business  by  absence  of  members, 
and  against  licentious  publications  of  their  proceedings."  To  this  motion 
Mr.  Richard  Dobbs  Spaight,  of  North  Carolina,  moved  a  provision  "  that 
on  the  one  hand  the  House  might  not  be  precluded  by  a  vote  upon  any  ques- 
tion, from  revising  the  subject  matter  of  it,  When  they  see  cause,  nor,  on 
the  other  hand,  be  led  too  hastily  to  rescind  a  decision,  which  was  the  re- 
sult of  mature  discussion."  2  These  two  motions  were  referred  to  the  com- 
mittee on  standing  rules,  which,  by  its  chairman,  reported  the  next  day  the 
following  additional  rules,  which  were  adopted  and  thus  completed  the  stand- 
ing rules  and  orders : 

That  no  member  be  absent  from  the  House,  so  as  to  interrupt  the  repre- 
sentation of  the  State,  without  leave. 

That  Committees  do  not  sit  whilst  the  House  shall  be  or  ought  to  be, 
sitting. 

That  no  copy  be  taken  of  any  entry  on  the  journal  during  the  sitting  of 
the  House  without  leave  of  the  House. 

That  members  only  be  permitted  to  inspect  the  journal. 

That  nothing  spoken  in  the  House  be  printed,  or  otherwise  published  or 
communicated  without  leave. 

That  a  motion  to  reconsider  a  matter  which  had  been  determined  by  a 
majority,  may  be  made,  with  leave  unanimously  given,  on  the  same  day  on 
which  the  vote  passed ;  but  otherwise  not  without  one  day's  previous  no- 
tice:  in  which  last  case,  if  the  House  agree  to  the  reconsideration,  some 
future  day  shall  be  assigned  for  that  purpose.3 

From  an  inspection  of  the  credentials  of  the  members  and  the  procedure   international 
adopted  for  its  conduct  it  is  evident  that  the  Federal  Convention  was  a  con-   convention 
ference  in  the  international  sense.     It  is  clear  that  the  States  were  repre- 
sented as  States,  and  they  voted  as  States;  that  a  method  of  procedure  was 
devised  calculated  to  put  the  project  in  its  entirety  and  in  its  several  parts 
before  the  convention,  to  diffuse  understanding  of  it  before  debate,  to  furnish 

^  Documentary  History,  Vol.  iii,  pp.  10-12. 
=  Ibid.,  p.  13. 
'Ibid.,  pp.  14-15. 


156  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

an  opportunity  for  discussion  upon  each  of  its  parts  as  well  as  upon  the 
project  as  it  should  appear  after  debate  and  amendment  for  the  approval 
of  the  convention;  that  committees  should  not  be  appointed  by  the  presi- 
dent, even  although  that  president  was  the  impartial  Washington,  but  their 
membership  determined  by  ballot,  which  excluded  favoritism  on  the  part  of  the 
chair  and  secured  the  judgment  of  the  States  upon  membership  without  dis- 
closing the  vote  of  the  individual  delegates;  that  members  could  not  absent 
themselves  without  leave  of  the  conference,  in  order  that  business  should 
not  be  interrupted  by  their  absence ;  that,  to  give  all  members  an  oppor- 
tunity to  keep  in  touch  with  the  proceedings,  no  committee  should  sit  while 
the  convention  itself  was  in  session;  and  that,  for  their  better  information, 
they  might  indeed  inspect  the  Journal,  but,  to  secure  the  secrecy  necessary 
to  the  success  of  the  conference,  only  the  members  might  do  so,  and  nothing 
spoken  in  debate  should  be  printed  or  published  or  communicated  without 
leave. 

As  these  standing  rules  and  orders  enabled  a  free  and  a  fair  exchange 
of  views  in  the  conference  which  drafted  the  agreement  of  the  States, 
which  is  today  the  oldest  existing  written  instrument  of  government,  if 
the  Constitution  of  Massachusetts  be  excluded,  they  are  worthy  of  consid- 
eration for  an  international  conference  which  shall  draft  and  recommend 
projects  to  the  States  forming  the  society  of  nations,  when  the  nations  meet 
again  in  conference  and  may  be  inclined  to  provide  the  Society  with  some 
form  of  organization.  It  is  to  be  borne  in  mind  that  each  State  is  the 
equal  in  law,  though  not  necessarily  in  influence,  of  all  others  represented 
in  conference.  Because  of  this,  the  rule  of  unanimity  may  be  thought  to  be 
requisite,  yet  inasmuch  as,  then  as  now,  the  State  is  only  bound  by  its  own 
consent,  and  as  the  acts  of  the  convention  or  conference  do  not  of  them- 
selves bind  the  constituents,  all  questions  may,  in  some  future  conference, 
as  in  the  Federal  Convention  at  Philadelphia,  "  be  decided  by  the  greater 
number  of  those  which  shall  be  fully  represented." 
opening  Immediately  after  the  additions  to  the  standing  rules  and  the  rejection 

of  the  ,  . 

Convention  0f  the  motion  that  a  committee  be  appointed  to  superintend  the  minutes, 

which  would  have  been  wise  in  view  of  the  careless  manner  in  which  they 
were  kept  by  the  secretary,  Mr.  Randolph,  to  quote  Mr.  Madison's  Notes, 
"  then  opened  the  main  business,"  and  after  expressing  regret,  as  is  the  wont 
of  public  speakers,  that  the  duty  of  opening  proceedings  should  have  fallen 
to  one  without  greater  experience, —  he  had  been  attorney  general  and  was 
then  governor  of  the  State  of  Virginia,  and  destined  to  be  attorney  general 
and  secretary  of  state  of  the  United  States, —  he  adverted  to  the  fact  that 
the  convention,  having  originated  from  Virginia,  some  proposition  would 
be  expected  to  emanate  from  the  delegation  of  that  State,  and  that  the  duty 


THE    FEDERAL    CONVENTION  :    AN    INTERNATIONAL    CONFERENCE  157 

of  laying  the  proposition  of  his  colleagues  before  the  convention  and  of 
explaining  its  terms  had  devolved  upon  him.  In  the  course  of  what  may 
be  considered  his  introduction,  he  observed  that,  in  revising  the  federal 
system,  inquiry  should  be  made  into  the  properties  which  such  a  government 
ought  to  possess,  the  defects  of  the  Confederation,  the  danger  of  the  situa- 
tion in  which  they  found  themselves,  and  the  remedy.  On  the  first  point 
he  said : 

The  character  of  such  a  government  ought  to  secure  1.  against  foreign 
invasion :  2.  against  dissensions  between  members  of  the  Union,  or  seditions 
in  particular  States :  3.  to  procure  to  the  several  States  various  blessings,  of 
which  an  isolated  situation  was  incapable :  4.  to  be  able  to  defend  itself 
against  encroachment :  &  5,  to  be  paramount  to  the  state  constitutions.1 

The  defects  of  the  Confederation  he  attributed  somewhat  condescend- 
ingly to  "  the  then  infancy  of  the  science,  of  constitutions,  &  of  confederacies," 
and  to  the  further  fact  that  the  framers  of  the  Articles  had  not  then  the 
benefit  of  experience,  but  he  graciously  concluded  that  perhaps  nothing  better 
could  be  obtained  from  the  jealousy  of  the  States  with  regard  to  their 
sovereignty. 

Enumerating  what  he  considered  the  defects  of  the  Articles,  he  said : 

1.  that  the  confederation  produced  no  security  against  foreign  invasion; 
congress  not  being  permitted  to  prevent  a  war  nor  to  support  it  by  their  own 
authority —  .  .  .  that  they  could  not  cause  infractions  of  treaties  or  of  the 
law  of  nations  to  be  punished :  that  particular  states  might  by  their  conduct 
provoke  war  without  controul ;  and  that  neither  militia  nor  draughts  being  fit 
for  defence  on  such  occasions,  enlistments  only  could  be  successful,  and  these 
could  not  be  executed  without  money. 

2.  that  die  federal  government  could  not  check  the  quarrels  between 
states,  nor  a  rebellion  in  any,  not  having  constitutional  power  Nor  means  to 
interpose  according  to  the  exigency. 

3.  that  there  were  many  advantages,  .  .  .  which  were  not  attainable  un- 
der the  confederation  —  such  as  a  productive  impost  —  counteraction  of  the 
commercial  regulations  of  other  nations  —  pushing  of  commerce  ad  libitum  • — 
&c  &c. 

4.  that  the  fcederal  government  could  not  defend  itself  against  the  en- 
croachments from  the  states. 

5.  that  it  was  not  even  paramount  to  the  state  constitutions,  ratified  as  it 
was  in  many  of  the  states.2 

After  referring  to  the  danger  of  the  situation  and  the  prospect  of  anarchy, 
due  to  the  general  laxity  of  government,  he  then  proceeded  to  point  out  the 
remedy,  "  the  basis  of  which  he  said  must  be  the  republican  principle." 

It  has  been  thought  advisable  to  state  somewhat  fully  Mr.  Randolph's 
views  on  the  first  and  second  points  of  his  address,  in  order  that  the  reader 

1  Documentary  History,  Vol.  iii,  p.  IS. 
-Ibid.,  pp.  15-16. 


15S  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

may,  as  far  as  possible,  be  in  the  position  of  his  auditors,  and  be  better  able 
to  appreciate  the  remedy  which,  Mr.  Randolph  was  careful  to  say,  should 
be  of  a  republican  nature,  and  which  he  laid  before  the  convention  with 
appropriate  explanations,  which  unfortunately  have  not  been  preserved. 
Mr.  Randolph's  The  Virginian  or  the  Randolph  plan,  as  it  is  indiscriminately  called,  con- 
tions  sisted  of  fifteen  resolutions.     They  were  the  basis  of  discussion  from  the 

day  of  their  presentation,  and  are  to  be  considered  as  embodying  the  general 
principles  which  expanded,  systematized  in  the  form  of  articles,  form  the 
more  perfect  Union  of  the  United  States  and  their  constitution. 

The  first  proposes  that  the  Articles  of  Confederation  be  corrected  and  en- 
larged in  the  interest  of  "  common  defense,  security  of  liberty,  and  general 
welfare." 

The  second,  that  suffrage  in  the  National  Legislature  be  proportioned  "  to 
the  Quotas  of  Contribution,  or  to  the  number  of  free  inhabitants." 

The  third,  that  the  National  Legislature  consist  of  two  branches. 

The  fourth,  that  "  the  members  of  the  first  branch  of  the  National 
Legislature"  be  elected  by  the  people  of  the  several  States  for  a  term  of 
years,  that  they  be  of  a  certain  age,  that  they  receive  compensation  for  their 
services,  and  that  they  do  not  hold  any  office  under  the  State  or  the  Unite  1 
States  incompatible  with  their  position. 

The  fifth,  that  "  the  members  of  the  second  branch  of  the  National  Legis- 
lature "  lie  elected  by  the  first  branch  of  the  legislature  from  a  list  of  nominees 
of  the  State  legislatures,  to  hold  office  under  approximately  the  same  condi- 
tions as  those  of  the  first  branch. 

The  sixth,  that  each  branch  originate  legislation,  that  the  Nation.  1 
Legislature  enjoy  the  rights  vested  in  Congress  by  the  Confederation,  and 
such  other  rights  for  which  the  separate  States  are  "  incompetent,"  or  in 
which  the  harmony  of  the  United  States  is  interrupted  by  State  legislatures: 
that  it  possess  in  addition  the  right  "  to  negative  all  laws  passed  by  the  several 
States  contravening  in  the  opinion  of  the  National  Legislature  the  articles  of 
Union ;  and  to  call  forth  the  force  of  the  Union  ag5'.  any  member  of  the 
Union  failing  to  fulfill  its  duty  under  the  articles  thereof." 

The  seventh,  that  a  National  Executive,  ineligible  for  a  second  term, 
chosen  by  the  National  Legislature  for  a  term  of  years,  be  instituted,  to  re- 
ceive a  salary  not  subject  to  increase  or  diminution  for  his  services,  to  execute 
the  national  laws  and  to  enjoy  "  the  Executive  rights  vested  in  Congress  by 
the  Confederation." 

The  eighth,  that  a  Council  of  Revision  of  "  the  Executive  and  a  convenient 
number  of  the  National  Judiciary"  be  created,  with  authority  to  examine 
the  acts  of  the  National  and  of  each  State  Legislature  and  to  reject  them 
under  certain  contingencies. 


THE   FEDERAL   CONVENTION:    AN    INTERNATIONAL    CONFERENCE  159 

The  ninth,  that  a  National  Judiciary,  consisting  or  one  or  more  supreme 
and  of  inferior  tribunals,  be  chosen  by  the  National  Legislature,  composed 
of  judges  holding  office  during  good  behavior,  receiving  a  salary  not  subject 
to  increase  or  diminution  during  their  term  of  office;  that  the  inferior 
tribunals  decide  in  first  instance  and  the  supreme  tribunal  in  dernier  ressort 
national  and  international  questions,  such  as  piracies  and  felonies  committed 
on  the  high  seas,  captures  made  from  an  enemy,  cases  affecting  foreigners 
or  citizens  of  other  States,  the  National  revenue,  impeachment  of  National 
officers,  and,  finally,  "  questions  which  may  involve  the  national  peace  and 
harmony." 

The  tenth,  that  new  States  be  admitted  to  the  Union  formed  of  terri- 
tory within  the  limits  of  the  United  States,  without  requiring  a  unanimous 
vote  in  the  National  Legislature. 

The  eleventh,  that  a  Republican  government  and  the  territory  belonging 
to  each  State  be  guaranteed  by  the  United  States,  "  except  in  the  instance  of 
a  voluntary  junction  of  Government  &  territory." 

The  twelfth,  that  provision  be  made  to  continue  the  existing  govern- 
ment and  its  obligations  until  "  a  given  day  after  the  reform  of  the  articles 
of  Union." 

The  thirteenth,  that  provision  be  made  for  amendment  of  "  the  Articles 
of  Union,"  without  requiring  the  assent  of  the  National  Legislature. 

The  fourteenth,  that  the  officers  of  the  several  States  be  bound  by  oath 
to  support  "  the  articles  of  Union." 

The  fifteenth,  and  last,  that  the  amendments  offered  to  the  Confedera- 
tion by  the  convention  be,  with  the  approbation  of  Congress,  submitted  to 
conventions  within  the  several  States  chosen  by  the  people  "  to  consider  & 
decide  thereon."  x 

It  will  be  observed  that  Mr.  Randolph's  resolutions  fall  into  four  groups.  The 
,,  ..  ,,  .         .    ,  &       r  '   Four 

based  upon  the  theory  and  the  practice  of  the  separation  of  powers  to  be  Groups 

found,  with  more  or  less  completeness,  in  every  one  of  the  constitutions  of 
the  thirteen  States  constituting  the  Confederation;  that,  leaving  out  the  first 
resolution,  to  the  effect  that  the  Articles  of  Confederation  should  be  cor- 
rected and  enlarged  in  order  to  secure  "  the  common  defence,  security  of 
liberty,  and  general  welfare,"  the  second  to  the  sixth,  inclusive,  deal  with  the 
legislative  branch  of  government,  the  seventh  and  eighth  with  the  executive 
department,  the  ninth  with  the  judiciary  (as  did  the  ninth  of  the  Articles  of 
Confederation),  and  the  remaining  six  with  matters  of  a  general  nature,  falling 
within  the  scope  of  the  proposed  government  but  of  a  general  nature  in  the 
sense  that  no  one  of  them  belonged  exclusively  to  any  one  of  the  three 

1  Documentary  History,  Vol.  iii,  pp.  17-20. 


160  THE    UNITED    STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

branches  into  which  the  government  of  the  more  perfect  Union  was  to  be 
divided. 

With  the  text  of  the  Articles  of  Confederation  before  our  eyes,  it  would 
appear  that,  grafting  these  resolutions  upon  the  Articles  was  very  like  pour- 
ing new  wine  into  old  bottles,  with  the  result  to  be  expected  of  such  a 
process.  For  the  strongest  advocate  of  the  Articles  of  Confederation  would 
not  suggest  that  they  provided  for  the  threefold  division  of  government,  in 
the  sense  in  which  each  of  the  States  had  done.  The  Congress  under  the 
Confederation  did  indeed  possess  the  power  of  recommending,  rather  than 
of  legislating,  and  the  right,  if  not  the  power,  in  all  cases  of  executing  recom- 
mendations approved  by  the  States,  or  its  own  acts  in  so  far  as  the  States 
did  not  interpose.  If  the  Congress  is  to  be  considered  as  an  executive,  it 
was  a  numerous  body,  not  a  single  person.  The  judicial  power,  in  so  far 
as  it  was  contained  in  the  Articles,  consisted  of  the  right  to  create  a  courf 
for  the  trial  of  piracies  and  felonies  committed  on  the  high  seas,  which 
was  never  created,  of  a  right  to  create  a  court  of  appeals  in  cases  of  capture, 
which  was  indeed  created,  but  whose  decisions  depended  upon  the  mere 
pleasure  of  the  States  for  their  enforcement;  and  finally,  a  power  to  call 
into  being  temporary  tribunals,  courts  or  commissions  for  the  settlement 
of  disputes  and  differences  between  two  or  more  States  concerning  boundary, 
jurisdiction  or  any  other  matter  of  a  justiciable  nature. 

It  is  true  that  the  States  under  the  Articles  of  Confederation  renounced 
the  exercise  of  certain  rights,  such  as  negotiating  with  foreign  countries  or 
concluding  treaties  of  alliance  with  themselves,  or  going  to  war  either  with 
foreign  countries  or  with  one  another,  but  there  was  apparently  no  power 
lodged  in  the  Congress  to  make  any  of  these  rights  effective, 
ciiangeof  The  Convention  was  called  by  the  Congress  for  the  sole  and  exclusive 

Purpose  purpose  of  revising  the  Articles  of  Confederation  and  of  rendering  them 

more  effective.  A  strict  and  literal  construction  of  this  mandate  would  have 
suggested,  if  it  did  not  require,  the  reading  of  the  Articles  as  a  whole,  the 
discussion  of  each  one  of  them  in  detail  and  its  adoption  as- amended,  and  a 
vote  upon  the  completed  instrument  as  a  whole  as  thus  corrected  and  en- 
larged. This  was  not  the  method  proposed  by  the  Virginian  plan,  and  a 
proposition  to  make  the  Articles  of  Confederation  the  basis  of  discussion 
was  rejected  by  the  Convention,  which  wisely  preferred,  in  accordance  with 
the  procedure  obtaining  in  international  conferences,  to  invite  the  presenta- 
tion of  projects,  to  make  one  or  more  of  them  the  basis  of  discussion,  to 
refer,  in  original  or  amended  form,  those  which  met  with  approval  to  a 
drafting  committee,  called  by  the  Federal  Convention  the  Committee  of 
Detail,  to  be  inserted  in  their  proper  places  in  the  treaty  or  convention  under 
amendment,  or  to  form  a  separate  treaty  or  convention  if  the  original  one 


THE    FEDERAL    CONVENTION  :    AN    INTERNATIONAL    CONFERENCE  161 

was  displaced  or  if  one  did  not  exist.  The  result  was  also  in  accord  with 
the  practice  of  international  conferences,  from  which,  as  a  man  well  versed 
in  their  affairs  has  wittily  said,  we  may  expect  anything  except  the  procedure 
outlined  in  the  program. 

It  is  frequently  stated  in  works  of  authority  that  the  convention  should 
have  revised  the  Articles  as  its  call  was  limited  to  their  revision,  and  that 
failing  to  do  so  their  proceedings  were  revolutionary.  The  charge  was  made 
on  more  than  one  occasion  in  the  convention  itself,  but  the  answer  then 
advanced  was  conclusive,  at  least  it  appeared  so  to  the  members ;  that  it  was 
proper  for  the  convention  to  submit  a  draft  of  a  more  perfect  Union  which 
in  their  opinion  was  calculated  to  effect  the  purposes  which  lay  behind  the 
call  of  the  conference,  inasmuch  as  the  labor  of  their  hands  would  only  be 
a  recommendation  to  the  Congress,  and  that  in  any  event  the  form  of  gov- 
ernment, if  approved  by  the  Congress,  would  be  submitted  to  the  States 
for  their  approval  or  rejection  and  would  derive  all  its  power  and  effect 
from  the  approval  of  the  States.  Or,  as  more  elegantly  expressed  by  the 
illustrious  Washington,  in  speaking  of  the  conference,  that  they  should 
"  raise  a  standard  to  which  the  wise  and  the  honest  can  repair." 

It  will  be  observed  that  Mr.  Randolph's  resolutions  speak  of  a  national 
legislature,  a  national  executive,  a  national  judiciary,  from  which  the  conse- 
quence is  often  drawn  that  the  framers  intended  to  and  actually  did  create 
a  nation  in  which  the  States  were  merged  and  their  identity  lost,  instead  of  of  f™?1 
a  Union  of  the  States,  the  government  whereof  was  vested  with  the  exer- 
cise of  certain  sovereign  powers,  expressly  enumerated  in  the  Constitution 
or  arising  by  necessary  implication  from  the  grant  of  specific  powers  which 
the  States  made  to  the  Union,  renouncing  at  the  same  time,  in  behalf  of  the 
Union,  certain  sovereign  powers  expressly  enumerated  or  arising  from  neces- 
sary implication.  In  the  course  of  the  proceedings,  to  be  specific  on  June 
20th,  the  term  "  national  "  in  its  relation  to  the  legislature  was  stricken  upon 
the  motion  of  Oliver  Ellsworth,  of  Connecticut,  substituting  "  government 
of  the  United  States  "  for  "  national  legislature."  *  But  it  is  believed  that 
this  amendment  is  immaterial,  inasmuch  as  the  term  "  national  "  was  used  as 
opposed  to  the  federal  form  of  government  then  existing,  and  that,  in  the 
language  of  the  period,  the  term  "  consolidated  "  was  employed  where  we 
of  today  would  properly  use  national.  The  framers  of  the  Constitution 
were  more  intent  upon  things  than  words. 

We  do  not,  however,  need  to  resort  to  speculation,  inasmuch  as  Mr. 
Madison  has  himself  explained  the  sense  in  which  the  term  "  national  "  was 
to  be  understood  in  the  Virginian  resolutions.  Thus,  in  a  letter  dated  March 
25,   1826,  to  Mr.  Andrew  Stevenson,  a  fellow  Virginian,  member  of  Con- 

1  Robert  Yates,  Secret  Proceedings  and  Debates  of  the  Convention,  1821,  p.  142. 


162  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

gress,  later  Speaker  of  that  body  and  Minister  to  England,  Mr.  Madison 
said: 

The  Word  Will  you  pardon  me  for  pointing  out  an  error  of  fact  into  which  you  have 

••  National "  fallen,  as  others  have  done,  by  supposing  that  the  term,  national  applied  to 

the  contemplated  Government,  in  the  early  stage  of  the  Convention,  particu- 
larly in  the  propositions  of  Mr.  Randolph,  was  equivalent  to  unlimited  or 
consolidated.  This  was  not  the  case.  The  term  was  used,  not  in  contradis- 
tinction to  a  limited,  but  to  a  federal  Government.  As  the  latter  operated 
within  the  extent  of  its  authority  thro'  requisitions  on  the  Confederated 
States,  and  rested  on  the  sanction  of  State  Legislatures,  the  Government  to 
take  its  place,  was  to  operate  within  the  extent  of  its  powers  directly  &  coer- 
cively  on  individuals,  and  to  receive  the  higher  sanction  of  the  people  of  the 
States.  And  there  being  no  technical  or  appropriate  denomination  applicable 
to  the  new  and  unique  System,  the  term  national  was  used,  with  a  confidence 
that  it  would  not  be  taken  in  a  wrong  sense,  especially  as  a  right  one  could 
be  readily  suggested  if  not  sufficiently  implied  by  some  of  the  propositions 
themselves.  Certain  it  is  that  not  more  than  two  or  three  members  of  the 
Body  and  they  rather  theoretically  than  practically,  were  in  favor  of  an  un- 
limited Gov',  founded  on  a  consolidation  of  the  States ;  and  that  neither  Mr. 
Randolph,  nor  any  one  of  his  colleagues  was  of  the  number.  His  propositions 
were  the  result  of  a  meeting  of  the  whole  Deputation,  and  concurred  or  ac- 
quiesced in  unanimously,  merely  as  a  general  introduction  of  the  business ; 
such  as  might  be  expected  from  the  part  Virginia  had  in  bringing  about  the 
Convention,  and  as  might  be  detailed,  and  defined  in  the  progress  of  the  work. 
The  Journal  shews  that  this  was  done.1 

Again  he  wrote,  in  a  letter  dated  December  26,  1826,  addressed  to  Thomas 
Cooper : 

With  respect  to  the  term  "  National  "  as  contradistinguished  from  the 
term  "  federal,"  it  was  not  meant  to  express  the  extent  of  power,  but  the 
mode  of  its  operation,  which  was  to  be  not  like  the  power  of  the  old  Confed- 
eration operating  on  States;  but  like  that  of  ordinary  Governments  operating 
on  individuals ;  &  the  substitution  of  "  United  States  "  for  "  National  "  noted 
in  the  journal,  was  not  designed  to  change  the  meaning  of  the  latter,  but  to 
guard  ag'.  a  mistake  or  misrepresentation  of  what  was  intended.  The  term 
"  National  "  was  used  in  the  original  propositions  offered  on  the  part  of  the 
Virg\  Deputies,  not  one  of  whom  attached  to  it  any  other  meaning  than 
that  here  explained.  Mr.  Randolph  himself  the  organ  of  the  Deputation, 
on  the  occasion,  was  a  strenuous  advocate  for  the  federal  quality  of  limited 
&  specified  powers ;  &  finally  refused  to  sign  the  constitution  because  its  pow- 
ers were  not  sufficiently  limited  &  defined.2 

And  in  a  letter  written  in  December,  1831,  to  Mr.  N.  P.  Trist,  Mr.  Madi- 
son recurred  to  this  question  and  thus  elaborated  his  views : 

The  whole  course  of  proceedings  on  those  Resolutions  ought  to  have  satis- 
fied him  [one  Col.  Taylor,  whose  views  Madison  was  combating]  that  the  term 
National  as  contradistinguished   from  Federal,  was  not   meant  to   express 

1  Documentary  History,  Vol.  v,  pp.  332-3. 

2  Ibid.,  p.  339. 


THE    FEDERAL    CONVENTION  :    AN    INTERNATIONAL    CONFERENCE  163 

more  than  that  the  powers  to  be  vested  in  the  new  Gov1,  were  to  operate 
as  in  a  Nat1.  Gov',  directly  on  the  people,  &  not  as  in  the  Old  Confed05'.  on  the 
States  only.  The  extent  of  the  powers  to  be  vested,  also  tho'  expressed  in 
loose  terms,  evidently  had  reference  to  limitations  &  definitions,  to  be  made 
in  the  progress  of  the  work,  distinguishing  it  from  a  plenary  &  Consolidated 
Gov'. 

It  ought  to  have  occurred  that  the  Gov1,  of  the  U.  S  being  a  novelty  &  a 
compound,  had  no  technical  terms  or  phrases  appropriate  to  it ;  and  that  old 
terms  were  to  be  used  in  new  senses,  explained  by  the  context  or  by  the  facts 
of  the  case. 

Some  exulting  inferences  have  been  drawn  from  the  change  noted  in  the 
Journal  of  the  Convention,  of  the  word  National  into  "  United  States."  The 
change  may  be  accounted  for  by  a  desire  to  avoid  a  misconception  of  the  for- 
mer, the  latter  being  preferred  as  a  familiar  caption.  That  the  change  could 
have  no  effect  on  the  real  character  of  the  Gov',  was  &  is  obvious ;  this  being 
necessarily  deduced  from  the  actual  structure  of  the  Gov',  and  the  quantum 
of  its  powers.1 

The  convention,  it  appears,  met  for  the  second  time  on  May  29th  at 
ten  o'clock, —  at  least  it  had  adjourned  to  that  hour.  Some  time  was  taken 
up  by  the  discussion  of  amendments  to  the  standing  rules.  Mr.  Randolph's 
address,  opening  "  the  main  business,"  must  have  been  an  elaborate  one, 
and  his  comments  upon  his  fifteen  resolutions  "  which  he  explained  one  by 
one,"  must  have  consumed  much  time ;  and  the  House  must  have  been  ready 
to  adjourn  at  the  conclusion  of  his  remarks,  for  immediately  thereafter  it 
was  resolved,  to  quote  Mr.  Madison's  Notes,  "  That  the  House  will  tomorrow 
resolve  itself  into  a  Committee  of  the  whole  House  to  consider  of  the  state 
of  the  American  Union  —  and  that  the  propositions  moved  by  Mr.  Randolph 
be  referred  to  the  said  Committee."  2  It  appears,  however,  from  the  entry 
immediately  following  in  Mr.  Madison's  Notes,  that  "  Mr.  Charles  Pinkney  other 
laid  before  the  House  the  draft  of  a  federal  Government  which  he  had  pre- 
pared, to  be  agreed  upon  between  the  free  and  independent  States  of  America." 
Probably  due  to  the  lateness  of  the  hour,  Mr.  Pinckney  contented  himself 
with  laying  his  plan  before  the  convention,  accompanying  it  with  some  few 
remarks  instead  of  by  an  elaborate  speech,  as  Mr.  Madison  does  not  give  a 
summary  of  an  address.  It  is  said  in  The  Secret  Proceedings  of  the  Federal 
Convention,  consisting  of  notes  made  by  Robert  Yates,  a  delegate  from 
New  York,  while  he  remained  in  attendance  after  an  account  of  the  Randolph 
resolutions,  that  "  Mr.  C.  Pinckney,  a  member  from  South  Carolina,  then 
added,  that  he  had  reduced  his  ideas  of  a  new  government  to  a  system,  which 
he  read,  and  confessed  it  was  grounded  on  the  same  principle  as  of  the  above 
resolutions."  3  Mr.  Pinckney's  plan,  of  which  the  text  is  not  contained  in 
any  contemporary  account,  was  likewise  referred  to  the  Committee  of  the 
Whole,  and  the  Convention  adjourned  for  the  day. 

At  a  later  period  a  plan  was  laid  before  the  convention  by  Mr.  Patter- 

ilbid.,  pp.  377-8.  z  Ibid.,  Vol.  iii,  p.  14. 

3  Yates,  Secret  Proceedings,  p.  97. 


164  THE   UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

son  of  New  Jersey,  and  called  indifferently  the  Patterson  or  the  New  Jersey 
plan.  This  proposed  a  revision  of  the  Articles  of  Confederation  in  accord- 
ance with  the  recommendation  of  Congress,  but  it  did  not  meet  with  favor 
and  was,  after  discussion  and  debate,  rejected  in  favor  of  Air.  Randolph's 
resolutions,  although,  as  will  appear,  it  had  a  decided  influence  on  the  course 
of  proceedings,  and  was  referred,  with  the  Randolph  resolutions,  as  amended 
and  enlarged,  and  with  Mr.  Pinckney's  plan,  to  the  Committee  of  Detail  to 
prepare  a  draft  of  the  Constitution. 

These  were  the  only  plans  laid  before  the  convention  at  any  time, 
although  Alexander  Hamilton  felt  called  upon,  as  did  Mr.  Pinckney,  to  ex- 
press his  personal  views  to  the  convention.  They  were,  in  the  language  of 
the  day,  "  high  toned,"  that  is  to  say,  they  looked  to  a  consolidated  form  of 
government,  consisting  of  a  threefold  distribution  of  powers,  in  which  the 
States  were  allowed  to  exist  but  reduced  practically  to  the  level  of  provinces, 
in  which  the  executive  was  to  hold  office  during  good  behavior,  and,  among 
other  powers,  was  to  appoint  governors  of  the  States,  to  hold  office  during 
his  pleasure.  This  project  fell  flat,  meeting,  as  far  as  known,  only  with 
the  approval  of  George  Read  of  Delaware,  and  its  distinguished  author  did 
not  feel  encouraged  to  present  a  draft  of  a  constitution  in  accordance  with 
his  views,  although  he  did  hand  one  to  Mr.  Madison  at  a  much  later  period 
before  the  adjournment  of  the  Convention.  It  was  not  laid  before  the 
Committee  of  Detail  and,  so  far  as  known,  Mr.  Hamilton's  views  had  no 
influence  with  that  committee  or  in  the  convention,  although  his  influence 
later  brought  about  the  ratification  of  the  Constitution  by  the  State  of  New 
York.1  To  secure  this  object  and  to  turn  the  tide  of  public  opinion  in  favor  of 
the  Constitution,  he  proposed  and,  with  the  large  cooperation  of  James  Madi- 
son and  some  help  from  Mr.  Jay,  wrote  and  published  in  the  press  a  series  of 
some  eighty-six  articles  which,  known  in  their  collected  form  as  The  Fed- 
eralist, are  universally  regarded  as  the  classic  exposition  of  the  Constitution. 
National  Before   passing   to    a    consideration   of    the   main    subdivisions    of    Mr. 

v.  Federal 

Government  Randolph's  resolutions,   it   is  advisable  to  call  attention  to   Mr.   Madison's 

distinction  between  a  national  government,  on  the  one  hand,  operating  upon 
individuals,  and  a  purely  federal  government  on  the  other  hand,  operating 
upon  States,  a  distinction  which  arose  early  in  the  course  of  debate.  It  did 
not  appear  clearly  in  the  text  of  Mr.  Randolph's  resolutions,  although  it  may 
have  been  in  the  minds  of  the  Virginia  members  who  stood  sponsor  for  the 
plan.     In  any  event,  the  national  legislature  was  empowered  by  the  sixth  reso- 

1  In  his  Memoirs,  under  date  of  November  19,  1818,  John  Quincj'  Adams  records  Major 
William  Jackson,  of  Philadelphia,  who  had  called  upon  him,  as  saying,  "  He  told  me  how 
he  had  been  chosen  Secretary  to  the  Convention  .  .  .  and  said  that  by  far  the  most  efficient 
member  of  the  Convention  was  Mr.  Madison;  that  Mr.  Hamilton  took  no  active  part  in  it, 
and  made  only  one  remarkable  speech."  The  Records  of  the  Federal  Convention,  Max 
Farrand,  Editor.  Vol.  Ill  (1911),  p.  426. 


THE    FEDERAL    CONVENTION  :    AN    INTERNATIONAL    CONFERENCE  165 

lution  "  to  call  forth  the  force  of  the  Union  ag5'.  any  member  of  the  Union 
failing  to  fulfil  its  duty  under  the  articles  thereof."  1  On  the  very  next  day 
Air.  Mason  observed,  as  reported  by  Mr.  Madison,  "  that  the  present  con- 
federation was  not  only  deficient  in  not  providing  for  coercion  &  punish- 
ment ag"'.  delinquent  States ;  but  argued  very  cogently  that  punishment  could 
not  in  the  nature  of  things  be  executed  on  the  States  collectively,  and  there- 
fore that  such  a  Gov',  was  necessary  as  could  directly  operate  on  individuals, 
and  would  punish  those  only  whose  guilt  required  it."  2  The  day  following,  sutes'00  ° 
when  this  clause  of  the  sixth  resolution  came  up  for  consideration,  Mr.  Madi- 
son himself  observed,  as  stated  in  his  Notes,  "  that  the  more  he  reflected  on  the 
use  of  force,  the  more  he  doubted,  the  practicability,  the  justice  and  the  efficacy 
of  it  when  applied  to  people  collectively  and  not  individually. —  A  union  of 
the  States  containing  such  an  ingredient  seemed  to  provide  for  its  own  de- 
struction. The  use  of  force  ag5'.  a  State,  would  look  more  like  a  declara- 
tion of  war,  than  an  infliction  of  punishment,  and  would  probably  be  con- 
sidered by  the  party  attacked  as  a  dissolution  of  all  previous  compacts  by 
which  it  might  be  bound.  He  hoped  that  such  a  system  would  be  framed 
as  might  render  this  recourse  unnecessary,  and  moved  that  the  clause  be 
postponed," —  a  motion  which  was  "  agreed  to  nem.  con."  3 

There  was  no  opposition  to  the  general  plan,  as  the  States  were  familiar 
with  the  threefold  division  of  power  and  their  delegates  were  apparently 
willing  to  provide  the  Union  with  a  government  of  this  kind.  Indeed,  the 
threefold  division  seemed  to  disarm  opposition  and  to  lead  the  delegates 
to  invest  the  government  with  greater  power  than  would  otherwise  have 
been  the  case,  and  Mr.  Madison  quotes  Mr.  Butler  of  South  Carolina  as 
saying,  in  the  session  of  May  30,  1787,  on  the  very  threshold  of  the  de- 
bates, "  that  he  had  opposed  the  grant  of  powers  to  Cong3,  heretofore,  be- 
cause the  whole  power  was  vested  in  one  body.  The  proposed  distribution 
of  the  powers  into  different  bodies  changed  the  case,  and  would  induce  him  ofnc™nera'fn 
to  go  great  lengths."  4 

In  a  constitution  meant  to  endure, —  and  the  delegates  of  the  Federal 
Convention  hoped  they  were  doing  no  vain  thing, —  it  was  impossible  to 
foresee  every  contingency  and  to  provide  against  it  by  a  specific  enumera- 
tion of  powers.  The  convention  therefore  wisely  contented  itself  with  the 
enumeration  of  what  may  be  called  general  powers  which  a  government 
adequate  to  the  exigencies  of  the  Union  should  possess,  powers  which  could 
be  better  exercised  by  the  Union  of  the  States  than  by  any  one  State.  Too 
long  to  quote,  it  is  difficult  to  summarize  these  powers,   inasmuch  as  the 

1  Documentary  History,  Vol.  iii,  p.  18. 
=  Ibid.,  p.  22. " 
s  Ibid.,  pi    33-4. 
*Ibid.,  p.  21. 


Powers 


166  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

language  of  the  Constitution  is  so  familiar  as  at  times  to  defy  paraphrase 
and  so  concise  'as  to  make  a  summary  seem  longer  than  the  original.  With- 
out attempting  the  impossible,  it  may  be  observed  that  the  great  defect  of 
the  Articles  of  Confederation  was  met  and  overcome  by  empowering  the 
Congress  "  to  lay  and  collect  taxes,  duties  and  imposts,"  with  the  wise  and 
indeed  necessary  proviso  that  they  should  be  uniform  throughout  the  United 
States.  This  would  enable  the  more  perfect  Union  to  pay  the  debts  already 
contracted  and  those  which  should  be  incurred  in  the  future,  and  to  do  what 
the  League  of  Friendship  under  the  Articles  of  Confederation  had  never 
been  able  to  do,  namely,  to  "  provide  for  the  common  defence  and  general 
welfare  of  the  United  States."  It  was  foreseen  that  the  government  of  the 
Union  might  need  to  borrow  money,  therefore  it  was  specifically  authorized 
to  do  this. 

The  second  great  defect  of  the  Articles  was  the  chaotic  condition  of  com- 
merce and  the  inability  of  the  Confederation  to  regulate  it.  All  attempts  to 
amend  the  Articles  in  this  sense  had  failed,  but  they  were  not  fruitless,  inas- 
much as  the  Annapolis  Convention  called  for  this  purpose  brought  about 
the  Federal  Convention  of  1787,  which  accomplished  it.  Hence  the  Con- 
gress was  given  power  to  regulate  commerce  with  foreign  nations,  the  several 
States,  and  the  Indian  tribes. 

The  Confederation  was,  according  to  its  critics,  largely  a  bankrupt  con- 
cern. It  therefore  had  very  special  reasons  to  recognize  the  need  of  uniform 
laws  on  the  subject  and  invested  Congress  with  the  power  to  make  them. 
It  was  necessary  to  have  money,  therefore  Congress  was  empowered  to  coin 
money,  to  regulate  its  value  and  that  of  foreign  coin,  and  in  the  interest 
of  trade  and  commerce  to  fix  the  standard  of  weights  and  measures.  And 
to  make  these  clauses  effective,  the  Congress  was  authorized  to  punish  counter- 
feiting of  the  securities  and  current  coin  of  the  United  States.  Allied  with 
this  phase  of  the  subject,  although  not  necessarily  connected  with  it,  was  the 
progress  of  science  and  useful  arts,  therefore  the  Congress  was  given 
authority  to  make  laws  securing  to  authors  and  inventors  copyrights  and 
patents  for  "  their  respective  writings  and  discoveries." 

As  it  was  recognized  that  a  vast  Union  could  not  be  held  together  for 
any  length  of  time  without  means  of  communication,  the  Congress  was 
authorized  to  establish  post  offices  and  post  roads.  Vast  indeed  the  terri- 
tory was,  although  but  a  fraction  of  that  now  subject  to  the  laws  of  the 
Union.  It  was  sparsely  settled,  but  it  was  anticipated  that  large  numbers 
of  persons  would  forsake  the  old  to  find  fortune  and  happiness  in  the  new 
world.  Accordingly  the  Congress  was  given  the  power  "  to  establish  an 
uniform  Rule  of  Naturalization"  that  the  new  might  enjoy  the  rights  of 
the  old. 


THE    FEDERAL    CONVENTION  I    AN    INTERNATIONAL    CONFERENCE  167 

The  government  was  to  be  one  of  laws,  not  of  men,  therefore  there  was 
to  be  a  Supreme  Court  which  would  interpret  the  laws  and  apply  them 
to  the  concrete  cases  as  they  arose  between  States  as  well  as  their  citizens, 
and  likewise  inferior  tribunals.  But  the  law  was  not  merely  to  be  the  law 
of  the  States  or  of  the  Union;  it  was  to  be  a  law  of  the  seas  as  well,  and  LlwT^ti,0" 

.  .  .  ,     Constitution 

the  Congress  was  given  the  power  to  punish  piracies  and  felonies  committed 
on  the  high  seas  beyond  the  jurisdiction  of  the  States  and  of  the  United 
States.  Wisely  the  Congress  was  vested  with  the  power  to  define  and  punish 
"  offences  against  the  Law  of  Nations,"  a  mere  clause,  yet  introducing  the 
whole  body  of  international  law,  making  it  a  part  of  the  Constitution  of  the 
United  States  and  of  each  State  of  the  Union,  for  every  citizen  and  inhabitant 
thereof.  The  Law  of  Nations  of  that  day  recognized  letters  of  marque  and 
reprisal,  as  it  still  does  captures  on  land  and  water.  Congress  could  there- 
fore have  enacted  laws  on  these  subjects  without  a  specific  authorization, 
yet  the  experience  of  the  Confederation  doubtless  suggested  the  advisability 
of  specific  mention.  They  were  then  and  are  now  incident  to  war,  and  on 
this  point  the  framers  of  the  Constitution,  intent  upon  a  government  of 
laws  not  of  men,  were  unwilling  to  trust  any  person  to  declare  war,  even 
the  august  president  of  the  convention,  General  Washington  himself,  already 
designated  in  the  minds  and  hearts  of  his  countrymen  to  be  the  first  of  a 
line  of  presidents  of  the  Union.  Therefore  only  the  Congress  was  to  de- 
clare war,  a  body  whose  lower  house  was  composed  of  representatives  of  the 
people  of  each  State  chosen  by  the  people  themselves  divided  into  districts, 
and  whose  upper  house  was  composed  of  two  representatives  from  all  States, 
large  and  small,  representing  the  States.  Representatives  of  the  people  and 
of  the  States  do  indeed  declare  war  unon  occasion,  hut  not  as  easily  and 
readily  as  members  of  a  family  owing;  their  position  and  prestige  to  war  and 
too  often  anxious  to  perpetuate  them  by  the  same  means. 

The  Congress  has  so  far  been  given  the  power  to  raise,  borrow,  and  coiri 
money,  to  regulate  commerce,  to  establish  means  of  communication,  and 
to  protect  what  may  be  called  intellectual  property,  to  establish  inferior 
tribunals  to  administer  within  the  States,  to  accept  jurisdiction  and  punish 
violations  of  the  Law  of  Nations,  and  to  declare  war.  Consequently  the 
Congress  was  vested  with  the  powers  incidental  to  the  declaration  of  war, 
the  power  to  raise  and  support  land  and  naval  forces  and  to  make  rules 
for  their  government.  The  war  of  course  was  to  be  carried  on  by  the 
United  States,  not  by  anv  one  of  the  States,  inasmuch  as  each  had  by  the 
Constitution  renounced  the  right  to  wage  war  unless  attacked.  The  presi- 
dent was  indeed  to  be  Commander-in-Chief  of  the  army  and  navy,  but  Con- 
gress was  to  raise  and  support  the  armies,  to  provide  and  maintain  a  navy, 
and  to  make  tbe  rules  of  their  government,  as  well  as  to  declare  war.     And 


168 


THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


nment 
of  Lav. 
Not  of  Men 


Seat  of 
Government 


Government 
of  Limited 
Towers 


to  make  the  rights  of  Congress  secure  in  the  premises,  no  appropriation  of 
money  for  these  purposes  was  to  be  for  "  a  longer  Term  than  two  Years." 
\\  ar  was  thus  to  be  declared  by  civilians,  armies  and  navies  were  to  be 
raised  and  supported  by  civilians,  the  rules  for  their  government  were  to  be 
made  by  civilians,  the  army  and  navy  in  the  war  were  to  be  commanded  by 
a  civilian,  to  the  end  that  this  may  be  a  government  of  laws  and  not  of  men. 

While  the  States  as  such  were  not  to  wage  war,  it  was  clearly  understood 
that  they  might  have  need  of  an  armed  force  to  protect  them  and  their 
peoples,  therefore  each  was  to  have  a  militia  to  be  raised  and  officered  by 
them,  to  be  commanded  by  them  in  times  of  peace,  but  in  time  of  war  to 
be  called  into  the  service  of  the  States  as  a  whole  instead  of  the  individual 
States.  Therefore  the  Congress  was  given  the  power  to  call  forth  "  the 
Militia  to  execute  the  Laws  of  the  Union,  suppress  Insurrections  and  repel 
Invasions."  Because  of  this  eventual  service,  the  Congress  was  authorized 
to  provide  for  "  organizing,  arming,  and  disciplining,  the  Militia,  and  for 
governing  "  the  part  of  it  taken  into  the  service  of  the  Union,  the  States 
reserving,  however,  the  appointment  of  officers  and  the  right  of  training  the 
militia  according  to  the  discipline  prescribed  by  Congress. 

Thus  far  we  have  a  government  without  a  habitat,  for  the  Union  was 
a  Union  of  the  States,  and  the  territory  to  the  west  of  the  States  belonged 
to  the  States.  There  was  not  a  foot  of  American  soil  belonging  to  the  Union 
as  such.  In  this  Union  the  States  were  to  be  equals.  There  was  to  be  no 
primus  inter  pares.  No  State  was  to  be  vested  with  any  prerogative,  privilege 
or  function  not  possessed  by  all.  Therefore  the  Congress  was  authorized 
to  accept  and  exercise  exclusive  jurisdiction  within  a  district  not  exceed- 
ing ten  miles  square  as  particular  States  might  cede,  to  become  "  the  Seat 
of  the  Government  of  the  United  States,"  and  the  Congress  was  similarly 
authorized  to  exercise  a  like  authority  "  over  all  places  purchased  by  the  Con- 
sent of  the  Legislature  of  the  State  in  which  the  Same  shall  be,  for  the  Erec- 
tion of  Forts,  Magazines,  Arsenals,  dock- Yards,  and  other  needful  Buildings." 

This  was  indeed  a  government  of  limited  powers  and  limited  extent,  the 
seat  of  government  itself  ten  miles  square,  to  be  ceded  by  the  States  if  they 
should  choose  to  do  so,  and  any  property  acquired  within  the  States  to  be 
purchased  by  the  Cong/ress  with  the  consent  of  the  legislature  of  the  State 
involved.  The  enumeration  of  these  powers  necessarily  carried  with  it  the 
right  to  make  such  laws  as  should  be  necessary  and  proper  to  carry  them 
into  execution,  but  it  was  well  to  say  so  in  order  to  remove  doubt  or  mis- 
understanding, as  also  to  authorize  the  Congress,  as  was  done  by  the  final 
paragraph  of  the  eighth  section  of  the  first  article,  to  carry  into  execution 
"  all  other  Powers  vested  by  this  Constitution  in  the  Government  of  the 
LTnited  States,  or  in  any  Department  or  Officer  thereof." 


VIII 
CREATION  OF  THE  FEDERAL  LEGISLATURE 

All  states  have  three  elements,  and  the  good  law-giver  has  to  regard  what  is  expedient 
for  each  state.  When  they  are  well-ordered,  the  state  is  well-ordered,  and  as  they  differ 
from  one  another,  constitutions  differ.  What  is  the  element  first  (1)  which  deliberates 
about  public  affairs;  secondly  (2)  which  is  concerned  with  the  magistrates  and  determines 
what  they  should  be,  over  whom  they  should  exercise  authority,  and  what  should  be  the 
mode  of  electing  them;  and  thirdly  (3)  which  has  judicial  power?  (The  Politics  of  Aris- 
totle, English  translation  by  Benjamin  Jowctt,  1885,  Vol.  I,  Book  IV,  Ch.  14,  p.  133.) 

They  saw  that  to  live  by  one  man's  will  became  the  cause  of  all  men's  misery.  This  con- 
strained them  to  come  unto  laws,  wherein  all  men  might  see  their  duties  beforehand,  and 
know  the  penalties  of  transgressing  them.  (Richard  Hooker,  Of  the  Laivs  of  Ecclesiastical 
Polity,  1594,  Church  edition,  1868,  Book'  I,  Section  10,  p.  56.) 

The  government  of  the  United  States  has  been  emphatically  termed  a  government  of 
laws,  and  not  of  men.  It  will  certainly  cease  to  deserve  this  high  appellation,  if  the  laws 
furnish  no  remedy  for  the  violation  of  a  vested  legal  right.  (Mr.  Chief  Justice  Marshall  in 
Marbury  v.  Madison,  1  Cranch  137,  163,  decided  in  1803J 

Relation  being  had  to  these  two  times,  Government  (to  define  it  de  jure,  or  according 
to  antient  Prudence)  is  an  Art  whereby  a  Civil  Society  of  Men  is  instituted  and  preserv'd 
upon  the  Foundation  of  common  Right  or  Interest;  or  (to  follow  Aristotle  and  Livy) 
It  is  the  Empire  of  Laws,  and  not  of  Men. 

And  Government  (to  define  it  de  facto,  or  according  to  modern  Prudence)  is  an  Art 
whereby  some  man,  or  some  few  men,  subject  a  City  or  a  Nation,  and  rule  it  according  to 
his  or  their  private  Interest :  which,  because  the  Laws  in  such  cases  are  made  according  to 
the  interest  of  a  man,  or  of  some  few  Families,  may  be  said  to  be  the  Empire  of  Men,  and 
not  of  Laws.  (James  Harrington,  The  Common-wealth  of  Oceana,  1656,  Toland  edition, 
1737,  Port  I,  The  Preliminaries,  Shewing  the  Principles  of  Government,  p.  37.) 

But  it  is  plain  that  where  the  Law  is  made  by  one  Man,  there  it  may  he  unmade  by  one 
man:  so  that  the  Man  is  not  govern'd  by  the  Law,  hut  the  Law  by  the  Man;  which  amounts 
to  the  Government  of  the  Man,  and  not  of  the  Law :  Whereas  the  Law  being  not  to  be 
made  but  by  the  Many,  no  man  is  govern'd  by  another  man,  but  by  that  only  which  is  the 
common  interest ;  by  which  means  this  amounts  to  a  Government  of  Laws,  and  not  of 
Men.  (James  Harrington,  The  Art  of  Law-giving,  1659,  Toland  edition,  1737,  Preface,  p. 
386.) 

Where  the  People  are  not  over-balanc'd  by  one  Man,  or  by  the  Few,  they  are  not  capable 
of  any.  other  Superstructures  of  Government,  or  of  any  other  just  and  quiet  settlement 
whatsoever,  than  of  such  only  as  consists  of  a  Senate  as  their  Counsillors,  of  themselves  or 
their  Representatives  as  Sovereign  Lords,  and  of  a  Magistracy  answerable  to  the  People, 
as  distributers  and  executioners  of  the  Laws  made  by  the  People.  And  thus  much  is  of 
absolute  necessity  to  any  or  every  Government,  that  is  or  can  be  properly  call'd  a  Common- 
wealth, whether  it  be  well  or  ill  order'd. 

But  the  necessary  definition  of  a  Common-wealth,  any  thing  well  order'd,  is,  That  it 
is  a  Government  consisting  of  the  Senate  proposing,  the  People  resolving,  and  the  Magis- 
tracy executing. 

Magistracy  is  a  stile  proper  to  the  executive  part:  yet  because  in  a  Discourse  of  this  kind 
it  is  hardly  avoidable,  but  that  such  as  are  of  the  proposing  or  resolving  Assemblies,  will 
be  sometimes  compriz'd  under  this  name  or  stile,  it  shall  be  enough  for  excuse  to  say,  that 
Magistracy  may  be  estcem'd  of  two  kinds;  the  one  proper  or  Executive,  the  other  improper 
or  Legislative.  (James  Harrington,  The  Art  of  Law-giving,  1639,  Toland  edition,  1737, 
Ch.  VI,  p.  393.) 

Thirdly.  I  know  what  is  said  by  the  several  admirers  of  monarchy,  aristocracy  and  de- 
mocracy, which  are  the  rule  of  one,  a  few,  and  many,  and  are  the  three  common  ideas  of  gov- 
ernment, when  men  discourse  on  the  subject.     But  I  chuse  to  solve  the  controversy  with  this 

169 


170  THE   UNITED -STATES  :    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

small  distinction,  and  it  belongs  to  all  three:  Any  government  is  free  to  the  people  under  it 
(whatever  be  the  frame)  where  the  lines  rule,  and  the  people  are  a  party  to  those  laws,  and 
more  than  this  is  tyranny,  oligarchy,  or  confusion.  {William  Perm's  Preface  to  the  Frame 
of  Government  of  Pennsylvania,  1682,  Ben.  Perley  Poore,  The  Federal  and  State  Consti- 
tutions, Colonial  Charters,  and  other  Organic  Laws  of  the  United  States,  Part  II,  1S77, 
P-  T519.) 

The  great  end  of  Mens  entring  into  Society,  being  the  Enjoyment  of  their  Properties 
in  Peace  and  Safety,  and  the  great  instrument  and  means  of  that  being  the  Laws  establish'd 
in  that  Society;  the  first  and  fundamental  positive  Law  of  all  Commonwealths,  is  the  estab- 
lishing of  the  Legislative  Power;  as  the  first  and  fundamental  natural  La~w,  which  is  to 
govern  even  the  Legislative  itself,  is  the  preservation  of  the  Society,  and  (as  far  as  will 
consist  with  the  publick  good)  of  every  person  in  it.  (John  Locke,  Two  Treatises  of 
Government,  1690,  Book  II,  Ch.   XI,  section    134,   Works,  Edition  of   1714,  Vol.  II.) 

The  Supream  Power  cannot  take  from  any  Man  any  part  of  his  Property  without  his 
own  Consent.  .  .  .  This  is  not  much  to  be  fear'd  in  Governments  where  the  Legislative 
consists,  wholly  or  in  part,  in  Assemblies  which  are  variable,  whose  Members  upon  the 
dissolution  of  the  Assembly,  are  Subjects  under  the  common  Laws  of  their  Country,  equally 
with  the  rest.  (John  Locke.  Two  Treatises  of  Government.  1690,  Book  II,  Ch.  XI,  section 
138,  Works,  Edition  of   1714,   Vol.   II.) 

When  the  legislative  and  executive  powers  are  united  in  the  same  person,  or  in  the  same 
body  of  magistrates,  there  can  be  no  liberty;  because  apprehensions  may  arise,  lest  the  same 
monarch  or  senate  should  enact  tvrannical  laws,  to  execute  them  in  a  tyrannical  manner. 

Again  there  is  no  liberty,  if  the  power  of  judging  be  not  separated  from  the  legislative 
and  executive  powers.  Were  it  joined  with  the  legislative,  the  life  and  liberty  of  the  subject 
would  be  exposed  to  arbitrary  controul;  for  the  judge  would  then  be  the  legislator.  Were 
it  joined  to  the  executive  power,  the  judge  might  behave  with  all  the  violence  of  an  oppressor. 

There  would  be  an  end  of  every  thing,  were  the  same  man,  or  the  same  body,  whether 
of  the  nobles  or  of  the  people,  to  exercise  those  three  powers,  that  of  enacting  laws,  and 
that  of  executing  the  public  resolutions,  and  that  of  judging  the  crimes  or  differences  of  in- 
dividuals. (.!/.  de  Montesquieu,  L'Esprit  des  Lois,  2  Vols.,  1748,  English  translation  oi 
1756,  Vol.  I,  Book  XI.  Chap.  VI,  p.  165.) 

In  the  government  of  this  commonwealth,  the  legislative  department  shall  never  exercise 
the  executive  and  judicial  powers,  or  either  of  them:  the  executive  shall  never  exercise 
the  legislative  and  judicial  powers,  or  either  of  them;  the.  judicial  shall  never  exercise  the 
legislative  and  executive  powers,  or  either  of  them ;  to  the  end  it  may  be  a  government 
of  laws,  and  not  of  men.  (Declaration  of  Rights  of  the  Inhabitants  of  the  Commonwealth 
of  Massachusetts.  1780,  Ben:  Perley  Poore.  The  Federal  and  Stale  Constitutions,  Colonial 
Charters,  and  other  Organic  Laws  of  the  United  States,  Part  I,  1877,  p.  960,  Article  XXX.) 

"  Sir,''  said  Rufus  Choate,  in  the  Massachusetts  Convention  of  1853,  for  revising  the 
Constitution  of  the  State  (1  Debates,  120),  "that  same  Bill  of  Rights,  which  so  solicitously 
separates  executive,  judicial,  and  legislative  powers  from  each  other,  'to  the  end,' — in  the 
fine  and  noble  expression  of  Harrington,  borrowed  from  the  'ancient  prudence,'  one  of 
those  historical  phrases  of  the  old  glorious  school  of  liberty  of  which  this  Bill  of  Rights  is 
so  full, —  and  which  phrases  I  entreat  the  good  taste  of  my  accomplished  friends  in  my 
eye,  to  whom  it  is  commit t  <1,  to  spare  in  their  very  rust,  as  they  would  spare  the  general 
English  of  the  Bible, — '  to  the  end  it  may  be  a  government  of  laws,  and  not  of  men  ' ;  that 
same  Bill  of  Rights  separates  the  people,  with  the  same  solicitude,  and  for  the  same  reason, 
from  every  part  of  their  actual  government, — '  to  the  end  it  may  be  a  government  of  laws 
and  not  of  men.' "  (James  Bradley  Thayer,  Cases  on  Constitutional  Law,  1895,  Vol.  I, 
foot-note,  pp.  384-385-) 

The  idea  of  an  actual  representation  of  all  classes  of  the  people  by  persons  of  each  class 
is   altogether   visionary.     Unless   it   were   expressly   provided   inthe   Constitution   that   each 
different  occupation   should   send  one  or  more  members,   the  thing  would   never  take  place 
in    practice.     {Alexander    Hamilton,    The    Federalist,    No.    35    [33],    1788,    Ford,    Ed;: 
1898.  p.  2:6  ) 

The  door  ought  to  be  equally  open  to  all,  (Alexander  Hamilton,  The  Federalist, 
No.  36   [34}.   1788,   Ford,   Editor,   1S0S,  p.  220.) 

The  system  of  representation  which  grew  up  in  the  early  colonies  under  no  legal  authoritv 
of  the  English  crown   (with  the  exception  of  Maryland,  where  it  was  only  authorized  and 


CREATION    OF    THE    FEDERAL    LEGISLATURE  171 

not  directed),  came  to  be  recognized  and  ratified  by  subsequent  charters.  It  was  ratified 
in  Connecticut  by  the  charter  of  1662;  in  Rhode  Island  by  the  charter  of  1663,  and  later 
in  Massachusetts  by  the  charter  of  1692.  In  the  colonies  established  after  the  Restoration 
in  1660  it  became  usual  for  the  English  king  to  grant  to  the  proprietor  permission  to 
give  to  the  freemen  the  right  to  a  share  in  legislation,  either  in  person  or  by  deputies. 
It  thus  seems  evident  that  the  representative  system  in  America  had  its  origin  in  the 
peculiar  circumstances  in  which  the  early  colonies  were  placed.  It  was  the  product  of  the 
practical  instinct  of  the  Teutonic  race,  which  had  given  birth  to  a  form  of  representation 
even  before  the  time  of  Henry  III.  or  Edward  I.  It  was  not  established  by  any  charter 
of  the  English  king,  and  did  not  receive  a  chartered  sanction  until  it  had  become  an  estab- 
lished institution  in  the  colonies.  It  had  its  own  peculiar  features  in  America,  which  were 
evidently  not  patterned  after  any  existing  model.  It  was  rather  a  reversion  to  an  earlier 
type  than  a  reproduction  of  an  existing  one;  and  was,  in  fact,  more  truly  representative  of 
the  whole  body  of  the  people  than  was  the  contemporary  English  House  of  Commons. 
{William  C.  Morey,  The  First  State  Constitutions,  Annals  of  the  American  Academy  of 
Political  and  Social  Science,  1893,  Vol.  4,  f.  210.) 

The  enlargement  of  population  must  always  be  attended  either  by  the  decay  of  demo- 
cratic institutions,  or  else  by  the  adoption  of  some  form  of  representation.  The  special  form 
which  representation  will  assume  in  any  people,  which  possesses  the  political  sagacity  to 
solve  the  problems  growing  out  of  its  own  social  life,  will  be  determined  by  the  circum- 
stances of  time  and  place.  It  will  be  seen  that  the  form  of  representation  which  grew  up 
in  the  American  colonies  was  not  a  reproduction  of  the  elaborate  and  comparatively  mature 
system  which  then  existed  in  England,  but  was  the  outgrowth  of  the  simple  life  of  the 
colonists  themselves,  and  was  moreover  marked  by  those  inchoate  features  which  distinguish 
a  primitive  from  a  well-developed  institution.  The  need  of  representation  was  felt  by 
the  colonists  as  soon  as  their  population  became  scattered  and  unable  to  meet  in  a  single 
assembly.  The  system  arose  from  the  requirements  of  the  colonists  themselves,  and  was 
fully,  established  before  it  was  recognized  by  the  English  crown.  (William  C.  Morey,  The 
First  State  Constitutions,  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
1893,  Vol.  4,  p.  205.) 

A  federal  state  requires  for  its  formation  two  conditions. 

There  must  exist,  in  the  first  place,  a  body  of  countries  such  as  the  Cantons  of  Switzer- 
land, the  Colonies  of  America,  or  the  Provinces  of  Canada,  so  closely  connected  by  locality, 
by  history,  by  race,  or  the  like,  as  to  be  capable  of  bearing,  in  the  eyes  of  their  inhabitants, 
an    impress   of    common    nationality.  ... 

A  second  condition  absolutely  essential  to  the  founding  of  a  federal  system  is  the  existence 
of  a  very  peculiar  state  of  sentiment  among  the  inhabitants  of  the  countries  which  it  is 
proposed  to  unite.  They  must  desire  union,  and  must  not  desire  unity.  (Albert  I  enn 
Dicey.  Introduction  to  the  Study  of  the  Lim>  of  the  Constitution,  1885,  8th  edition,  1915, 
Pp.   136-7.) 

A  federal  state  is  a  political  contrivance  intended  to  reconcile  national  unity  and  power 
with  the  maintenance  of  "state  rights."  The  end  aimed  at  fixes  the  essential  character  of 
federalism.  For  the  method  by  which  Federalism  attempts  to  reconcile  the  apparently  in- 
consistent claims  of  national  sovereignty  and  of  state  sovereignty  consists  of  the  formation 
of  a  Constitution  under  which  the  ordinary  powers  of  sovereignty  are  elaborately  divided 
between  the  common  or  national  government  and  the  separate  states.  The  details  of  this 
division  vary  under  every,  different  federal  constitution,  but  the  general  principle  on  which 
it  should  rest  is  obvious.  Whatever  concerns  the  nation  as  a  whole  should  be  placed  undi  r 
the  control  of  the  national  government.  All  matters  which  are  not  primarily  of  common 
interest  should   remain   in  the  hands  of  the   several   States.  ... 

From  the  notion  that  national  unity  can  be  reconciled  with  state  independence  by  a 
division  of  powers  under  a  common  constitution  between  the  nation  on  the  one  hand  and 
the  individual  States  on  the  other,  flow  the  three  leading  characteristics  of  complel  ! 
developed  t<  deralism  —  the  supremacy  of  the  constitution —  the  distribution  among  bodies 
with  limited  and  co-ordinate  authority  of  the  different  powers  of  government  —  the  authority 
of  the  (  ourts  to  act  as  interpreters  of  the  constitution.  {  Ubert  I  enn  Dicey,  Introduction 
to  the   Study  of  the  Law  of  the  Constitution,  1SS5,  8th  edition,  1915,  pp.  139-140.) 


CHAPTER  VIII 


CREATION    OF    THE    FEDERAL    LEGISLATURE 


The 

Spirit  of 
Compromise 


The  Two 
Branches 
of  the 
Legislature 


In  Mr.  Randolph's  resolutions  the  legislative  power  precedes  the  execu- 
tive and  the  judiciary,  and  therefore  was  the  first  to  be  taken  up;  and  the 
very  first  resolution  of  the  group  dealing  with  legislative  power  raised  the 
issues  which  divided  the  delegates  of  the  large  and  the  small  States  into 
hostile  camps.  But  the  difference  was  adjusted  by  a  concession  of  the  ex- 
treme views  of  each,  resulting  in  a  compromise  which  made  the  Constitu- 
tion a  possibility;  and  indeed  it  may  be  stated  in  this  connection,  as  it  will 
be  illustrated  in  the  course  of  this  narrative,  that  agreement  was  only  pos- 
sible on  that  principle  of  give  and  take  obtaining  in  international  confer- 
ences, and  that  the  Constitution  itself  is  the  very  creature  of  compromise  and 
concession.  The  necessary  spirit  of  concession  was  perhaps  best  stated  by 
Mr.  John  Langdon  of  New  Hampshire,  whom,  apropos  of  the  Militia  clause 
in  the  proposed  Constitution,  Mr.  Madison  reports  as  follows: 

Mr.  Langdon  said  He  could  not  understand  the  jealousy  expressed  by  some 
Gentleman.  The  General  &  State  Gov*8,  were  not  enemies  to  each  other,  but 
different  institutions  for  the  good  of  the  people  of  America.  As  one  of  the 
people  he  could  say,  the  National  Gov1,  is  mine,  the  State  Gov',  is  mine  — ■ 
In  transferring  power  from  one  to  the  other  —  I  only  take  out  of  my  left 
hand  what  it  cannot  so  well  use,  and  put  it  into  my  right  hand  where  it  can 
be  better  used.1 

The  plan  provided  for  a  national  legislature  of  two  houses,  the  first  and 
the  second,  which,  in  the  completed  instrument  appear  as  the  Congress,  con- 
sisting of  a  House  of  Representatives  and  a  Senate,  the  first  representing 
the  people  of  the  States  according  to  their  population,  the  second  the  States 
or  the  people  within  the  States,  and  in  which  each  is  represented  by  two 
Senators,  voting  as  individuals,  not  as  delegates  casting  their  vote  under  direct 
and  specific  instructions  of  the  State  or  the  citizens  thereof.  There  was 
practically  no  objection  to  the  bicameral  system,  although  Pennsylvania,  ap- 
parently influenced  by  Dr.  Franklin's  preference  for  a  single  chamber,  pro- 
posed it,  only  to  have  it  rejected.2 

Nor  was  there  any  great  opposition  to  the  powers  with  which  each  of 

1  Documentary  History  of  the  Constitution.  Vol.  iii,  p.  597. 

2  "  The  3d  Resolution  'that  the  national  Legislature  ought  to  consist  of  two  branches' 
was  agreed  to  without  debate  or  dissent,  except  that  of  Pennsylvania,  given  probably  from 
complaisance  to  DoC.  Franklin  who  was  understood  to  be  partial  to  a  single  House  of  Leg- 
islation."   Ibid.,  p.  26. 

172 


CREATION    OF   THE   FEDERAL   LEGISLATURE  173 

these  branches  was  to  be  vested.  These  were  indeed  important  matters,  but 
they  were  rather  questions  of  detail,  after  agreement  upon  the  principle,  and 
until  that  principle  was  accepted,  a  Constitution  of  the  kind  proposed  by  the 
Virginian  plan  was  impossible.  This  principle  was  that  the  first  branch 
should  not  merely  be  elected  by  the  people  of  the  several  States  but  that  the 
right  of  suffrage  in  the  national  legislature  ought  "  to  be  proportioned  to 
the  quotas  of  contribution  or  to  the  number  of  free  inhabitants."  It  was 
provided  in  the  fifth  resolution  that  the  members  of  the  second  branch  "  ought 
to  be  elected  by  those  of  the  first,  out  of  a  proper  number  of  persons 
nominated  by  the  individual  Legislatures."  1 

There  was  little  or  no  opposition  to  the  election  of  the  first  branch  by 
the  people  of  each  and  every  State,  and  after  no  great  discussion  Mr. 
Dickinson's  motion  was  accepted  on  June  7th,2  that  the  members  of  the  second 
branch  should  be  elected  by  the  legislatures  of  the  respective  States,  thus 
providing  the  basis  for  the  compromise  that  the  first  branch  should  repre- 
sent the  people  of  the  States  as  such,  the  second  branch  the  States.  The 
instructions  of  the  State  of  Delaware,  however,  blocked  the  way,  for  although 
they  did  not  prevent  a  double  chamber,  if  the  convention  should  think  such 
a  system  desirable,  they  forbade  the  delegates  of  that  State  from  accept- 
ing a  system  in  which  the  States  should  not  have  an  equal  vote.  This  op- 
position was  brought  to  a  head  by  Mr.  Madison,  who  moved,  on  May  30th, 
the  first  session  in  which  the  plan  was  discussed,  "  that  the  equality  of 
suffrage  established  by  the  articles  of  Confederation  ought  not  to  prevail  in 
the  National  legislature,  and  that  an  equitable  ratio  of  representation  ought 
to: be  substituted."  3 

It  does  not  need  to  be  recalled  that  Mr.  Madison  represented  the  large 
State  of  Virginia.  In  view  of  the  discussion  of  the  matter  of  equality  be-  pfURSep°"s 
tween  members  of  that  delegation  and  of  Pennsylvania  before  the  opening  sentatl°a 
of  the  convention,  it  was  to  be  expected  that  Mr.  Madison  would  be  seconded 
by  a  member  of  that  delegation,  and  it  was,  very  appropriately  by  Gouverneur 
Morris,  who  had  raised  the  question.  Mr.  Madison,  commenting  upon  his 
motion,  says  that  it  was  "  generally  relished  "  and  that  it  "  would  have  beert 
agreed  to ;  when, 

Mr.  Reed  moved  that  the  whole  clause  relating  to  the  point  of  Representa- 
tion be  postponed ;  reminding  the  Com8,  that  the  deputies  from  Delaware  were 
restrained  by  their  comission  from  assenting  to  any  change  of  the  rule  of 
suffrage,  and  in  case  such  a  change  should  be  fixed  on,  it  might  become  their 
duty  to  retire  from  the  Convention.4 

1  Documentary  History,  Vol.  iii,  p.  17. 
=  Ibid.,  p.  87. 
3  Ibid.,  p.  24. 
*Ibid. 


174        THE  united  states:  a  study  in  international  organization 

After  some  observations  of  a  general  nature,  Mr.  Read's  motion  to  post- 
pone prevailed,  it  being  understood,  according  to  Mr.  Madison,  that  at  most 
the  State  of  Delaware  would  withdraw  if  this  provision  of  the  Virginian 
plan  were  agreed  to. 
states  It  is  to  be  feared  that  Mr.   Madison,  as  a  representative  of  the  large 

States,  was  oversanguine  in  this,  as  the  experience  of  the  convention,  as 
well  as  of  other  international  conferences,  shows  that,  although  little  States 
may  not  carry  their  points  against  the  large  ones,  they  can  by  uniting  their 
forces  nevertheless  prevent  the  larger  States  from  working  their  will  to  the 
detriment  of  the  smaller. 

It  is  not  material  to  the  present  purpose  to  state  in  detail  the  arguments 
advanced  by  the  delegates  of  the  larger  States  in  support  of  proportional 
representation,  or  to  describe  the  generous  sentiments  in  which  they 
abounded,  and  the  expressions  of  belief  on  their  part  that  the  rights  of  the 
smaller  States  would  be  sufficiently  safeguarded  by  such  an  arrangement. 
Nor  is  it  material  to  summarize  the  views  of  the  small  States,  insisting  upon 
an  equality  of  right  arising  from  the  fact  that  they  were  States  and  from 
their  suffering  in  a  common  cause,  in  which  they  had  contributed  their 
mite,  in  any  case  their  all.  Mr.  Madison  himself,  in  an  elaborate  argu- 
ment on  June  19th,  stated  it  all  in  a  nut-shell  when  he  said  that  "  The  great 
difficulty  lies  in  the  affair  of  Representation;  and  if  this  could  be  adjusted, 
all  others  would  be  surmountable.  It  was  admitted  by  both  the  gentlemen 
from  N.  Jersey  (Mr.  Brearly  and  Mr.  Patterson)  that  it  would  not  be  just  to 
allow  Virg".  which  was  16  times  as  large  as  Delaware  an  equal  vote  only. 
Their  language  was  that  it  would  not  be  safe  for  Delaware  to  allow  Virg". 
16  times  as  many  votes.  The  expedient  proposed  by  them  was  that  all  the 
States  should  be  thrown  into  one  mass  and  a  new  partition  be  made  into  13 
equal  parts."  1 

The  fear  of  the  small  States  to  be  absorbed  into  the  larger  or  deprived 
of  their  influence,  and  the  unwillingness  of  the  large  States  to  be  reduced 
to  an  equality,  as  proposed  by  the  small  "  fry,"  led  to  a  readjustment  of  the 
views  of  both,  and  it  is  desirable  to  consider  the  steps  by  which  this  compro- 
mise was  reached.  The  dissatisfaction  of  the  delegates  of  the  smaller  States 
with  the  national  plan  was  evident  from  the  moment  of  its  introduction,  but, 
as  in  international  conferences,  they  allowed  themselves  to  be  rushed  along 
until,  after  conference  among  themselves,  they  might  hit  upon  a  plan  of 
their  own,  which  would  unite  them  in  opposition  to  the  resolutions  sought 
to  be  imposed  upon  them.  In  this  particular  case  there  was  a  reason  for 
delay  not  ordinarily  present  in  international  conferences,  in  that,  the  dele- 
gates of  all  the  States  had  not  appeared,  including  some   from  the  lesser 

1  D<  cumentary  History,  Vol.  iii,  pp.  160-1. 


CREATION    OF   THE    FEDERAL    LEGISLATURE  175 

States  who  could  be  counted  upon.  Two  States  were  not  represented  at  all  ofqstates 
in  the  earlier  sessions,  and  it  was  felt  that,  if  New  Hampshire  and  Rhode 
Island  should  appear,  they  could,  as  small  States,  be  relied  upon  as  members 
of  the  opposition.  It  was  bruited  abroad  that  New  Hampshire  would  be  rep- 
resented. On  June  27th  its  delegates  were  appointed,  although  they  attended 
for  the  first  time  nearly  a  month  later,  on  July  23d.  So  certain  were  the 
small  States  of  New  Hampshire,  that,  during  the  session  of  June  30th,  in 
the  heat  of  debate  on  the  question  of  equality,  Mr.  Brearly  of  New  Jersey 
moved,  according  to  Mr.  Madison,  "  that  the  Presid1.  write  to  the  Executive 
of  N.  Hamshire,  informing  it  that  the  business  depending  before  the  Con- 
vention was  of  such  a  nature  as  to  require  the  immediate  attendance  of  the 
deputies  of  that  State.  In  support  of  his  motion  he  observed  that  the  diffi- 
culties of  the  subject  and  the  diversity  of  opinions  called  for  all  the  assist- 
ance we  could  possibly  obtain."  1  This  apparently  was  the  reason  advanced 
by  Mr.  Brearly.  The  reason  undoubtedly  uppermost  in  his  mind  is  thus 
added  by  Mr.  Madison  in  parenthesis  by  way  of  comment: 

It  was  well  understood  that  the  object  was  to  add  N.  Hamshire  to  the 
n°.  of  States  opposed  to  the  doctrine  of  proportional  representation,  which  it 
was  presumed  from  her  relative  size  she  must  be  adverse  to. 

Mr.  Patterson  of  New  Jersey,  the  proposer  of  the  small  State  plan, 
seconded  the  motion.  Mr.  Rutledge  of  South  Carolina,  which  ranged  it- 
self with  the  large  States,  "  could  see  neither  the  necessity  nor  propriety  of 
such  a  measure.  They  are  not  unapprized  of  the  meeting,  and  can  attend 
if  they  choose.  Rho.  Island  might  as  well  be  urged  to  appoint  &  send 
deputies.  Are  we  to  suspend  the  business  until  the  deputies  arrive?  if  we 
proceed  he  hoped  all  the  great  points  would  be  adjusted  before  the  letter 
could  produce  its  effect."  Mr.  King,  then  of  Massachusetts  and  later  of 
New  York,  Senator  of  that  State,  Minister  to  England  and  candidate  of 
the  Federalist  party  for  President,  said  "  he  had  written  more  than  oncq 
as  a  private  correspondent,  &  the  answers  gave  him  every  reason  to  expect 
that  State  would  be  represented  very  shortly,  if  it  shd.  be  so  at  all.  Cir- 
cumstances of  a  personal  nature  had  hitherto  prevented  it.  A  letter  cd.  have 
no  effect."  Mr.  Wilson  of  Pennsylvania,  likewise  one  of  the  large  States, 
"  wished  to  know  whether  it  would  be  consistent  with  the  rule  or  reason  of 
secrecy,  to  communicate  to  N.  Hampshire  that  the  business  was  of  such  a 
nature  as  the  motion  described.  It  wd.  spread  a  great  alarm.  Besides  he 
doubted  the  propriety  of  solicitating  any  State  on  the  subject;  the  meeting 
being  merely  voluntary." 

Admitting  that  these  reasons  were  well  taken,  it  is  to  be  observed  that 

1  Documentary  History,  Vol.  iii,  p.  247. 


176  THE    UNITED    STATES:    A   STUDY    IN    INTERNATIONAL    ORGANIZATION 

the  motion  was  made  by  a  delegate  of  the  State  of  New  Jersey  and  seconded 
by  a  delegate  of  that  State,  and  that  all  objections  to  the  proposed  course 
of  action  were  made  by  delegates  of  the  larger  States,  who  hoped,  as  Mr. 
Rutledge  bluntly  put  it,  that  "  all  the  great  points  would  be  adjusted  be- 
fore the  letter  could  produce  its  effect."  Rhode  Island,  which  undoubtedly 
would  have  voted  with  the  smaller  States,  was  not  represented,  and  on 
June  11th,  Abraham  Baldwin  of  Georgia,  which  State  usually  voted  with 
the  larger  ones,  arrived.  And  it  is  worth  while  mentioning  that  he  was 
a  native  of  Connecticut,  as  was  Oliver  Ellsworth,  a  member  of  the  conven- 
tion from  that  State,  who  preferred  to  call  it  a  middle  rather  than  a  small 
State.  It  is  also  noteworthy  that  Luther  Martin  of  Maryland  was,  like 
Mr.  Ellsworth,  a  graduate  of  Princeton  College,  and  that  both  were 
partisans  of  equality.  For  whatever  reason,  Mr.  Baldwin's  vote  on  July 
2d  in  favor  of  equality  neutralized  the  vote  of  his  colleague  against  it.1 
With  Georgia  thus  eliminated  as  a  State,  since  it  voted  neither  in  favor  of 
nor  against  equality,  the  convention  divided,  five  States  for  and  five  States 
against,  which  fact  inclined  the  minds  of  the  large  States  to  compromise. 

Other  members  had  privately  done  as  Mr.  King  said  he  had  done,  and 
on  the  9th  of  June,  when  Luther  Martin,  the  champion  of  equality,  took 
his  seat,  Mr.  Brearly,  Chief  Justice  of  New  Jersey,  wrote  to  Jonathan  Dayton, 
urging  his  presence,  saying  that  "  We  have  been  in  a  Committee  of  the 
Whole  for  some  time,  and  have  under  consideration  a  number  of  very  im- 
portant propositions,  none  of  which,  however,  have  as  yet  been  reported. 
My  colleagues,  as  well  as  myself,  are  very  desirous  that  you  should  join  us 
immediately.  The  importance  of  the  business  really  demands  it."  And  it 
did.2 

On  the  13th  the  Committee  of  the  Whole  reported  the  Randolph  plan, 
amending  and  expanding  the  original  fifteen  to  nineteen  articles.  The  con- 
vention was  ready  to  take  them  up  and  would  doubtless  have  done  so  on 
the  morrow  had  not  the  smaller  States  then  felt  themselves  sufficiently  strong 
to  take  the  initiative.  Therefore,  when  the  convention  met  on  June  14, 
1787,  Mr.  Patterson  of  New  Jersey,  to  quote  Mr.  Madison's  Notes,  observed 

1  "  It  was  Georgia  that  had  changed.  Her  vote,  hitherto  regularly  given  to  the  majority, 
was  this  time  divided.  It  was,  in  fact,  one  man  only  that  had  changed,  and  that  man  was 
Abraham  Baldwin,  a  native  of  Connecticut,  a  graduate  and  sometime  tutor  of  Yale,  and  but 
recently  become  a  citizen  of  the  state  which  he  now  sat  for.  The  facts  countenance  a  con- 
jecture that  the  personal  influence  of  the  three  leading  men  of  his  native  state  may  have 
helped  to  turn  him;  but  he  may  also  have  felt,  as  Georgia  was  the  last  state  to  vote,  and  had 
but  two  representatives,  that  he  and  his  colleague  had  to  decide  whether  the  convention 
should  continue  in  existence.  He  had  said  that  he  thought  the  second  branch  ought  to  be 
an  aristocratic  body,  and  his  votes,  both  before  and  after  this  particular  division,  show  that 
he  was  favorable  to  the  national  view.  The  chances  are  that  to  save  the  convention  he  had 
for  the  time  being  sacrificed  his  own  opinions."  W.  G.  Brown,  The  Life  of  Oliver  Ellsivorth, 
p.  144. 

2  J.  F.  Ja'meson,  Studies  in  the  History  of  the  Federal  Convention,  in  the  Annual  Report 
of  the  American  Historical  Association  for  1902,  p.  98. 


CREATION    OF   THE   FEDERAL    LEGISLATURE  177 

"  that  it  was  the  wish  of  several  deputations,  particularly  that  of  N.  Jersey, 
that  further  time  might  be  allowed  them  to  contemplate  the  plan  reported  from 
the  Committee  of  the  Whole,  and  to  digest  one  purely  federal,  and  contra- 
distinguished from  the  reported  plan.  He  said  they  hoped  to  have  such  an 
one  ready  by  tomorrow  to  be  laid  before  the  Convention:  and  the  Con- 
vention adjourned  that  leisure  might  be  given  for  the  purpose."  *  Mr. 
Madison  in  later  years  added  a  comment  to  his  notes,  stating  that  "  The 
eagerness  displayed  by  the  members  opposed  to  a  Nat1.  Gov',  from  these 
different  motives  began  now  to  produce  serious  anxiety  for  the  result  of 
the  Convention.  Mr.  Dickenson  said  to  Mr.  Madison  You  see  the  con- 
sequence of  pushing  things  too  far.  Some  of  the  members  from  the  small 
States  wish  for  two  branches  in  the  General  Legislature,  and  are  friends  to 
a  good  National  Government ;  btit  we  would  sooner  submit  to  foreign  power, 
than  submit  to  be  deprived  of  an  equality  of  suffrage  in  both  branches  of  the 
legislature,  and  thereby  be  thrown  under  the  domination  of  the  large  States."  2 
On  the  15th  Mr.  Patterson  presented  his  plan,  which,  he  said,  "several 
of  the  deputations  wished  to  be  substituted  in  place  of  that  proposed  by  Mr. 
Randolph."  After  discussion  it  was  decided  that  it  should  be  laid  before 
the  Committee  of  the  Whole,  that  Mr.  Randolph's  plan  should  be  recom- 
mitted in  order  that  the  two  should  be  compared,  and  the  convention  like- 
wise decided  that  it  should  not  go  into  the  Committee  of  the  Whole  until 
the  day  following,  in  order  that  the  friends  of  the  Patterson  plan  should 
be  the  better  prepared  to  explain  and  support  it  and  the  members  of  the 
convention  have  the  opportunity  of  providing  themselves  with  copies.  There- 
upon, Mr.  Patterson  moved  nine  resolutions,  proposing 

1.  That  the  Articles  of  Confederation  be  "  revised,  corrected  &  enlarged,"  Jehr|eNtgjan 
in  order  to  render  them  "  adequate  to  the  exigencies  of  Government,  &  the 
preservation  of  the  Union." 

2.  That  in  addition  to  the  powers  already  possessed,  the  United  States 
in  Congress  assembled  be  authorized  to  raise  revenue  and  to  expend  it  for 
federal  purposes  by  duties  imposed  on  imports,  stamps  upon  paper  and  letters 
and  packages  passing  through  the  general  post-office;  to  regulate  commerce 
with  foreign  nations  and  with  the  States;  also  that  suits  for  the  violation 
of  any  such  regulations  be  brought  in  the  State  courts  with  an  appeal  in  law 
and  fact  to  "  the  Judiciary  of  the  U.  States." 

3.  That  requisitions  upon  the  States  be  made  in  proportion  to  the  number 
of  white  and  other  free  citizens,  including  inhabitants  bound  to  servitude 
for  a  term  of  years  and  "  three  fifths  of  all  other  persons  .  .  .  except  Indians 

1  Documentary  Flistory,  Vol.  iii,  p.  123. 

2  The  Journal  of  the  Debates,  Gaillard  Hunt  ed.,  Vol.  i,  p.  138  note. 


178  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL    ORGANIZATION 

not  paying  taxes  " ;  provided,  however,  that  the  consent  of  States 

be  required  for  the  exercise  and  enforcement  of  these  powers. 

4.  That  a  federal  Executive  be  elected  to  consist  of  persons 
for  a  single  term  of  years,  to  receive  compensation  for  services 
not  to  be  increased  or  diminished  during  the  term  of  office,  and  subject  to 
removal ;  that  this  Executive  be  authorized  to  carry  out  federal  acts,  to  ap- 
point federal  officers  not  otherwise  provided  for,  and  to  direct  military 
operations,  without,  however,  commanding  the  army  or  navy. 

5.  That  a  federal  Judiciary  be  established  to  consist  of  a  supreme  tribunal 
composed  of  judges  ineligible  for  other  positions  during  service,  appointed 
by  the  Executive  to  serve  during  good  behavior,  receiving  fixed  compensa- 
tion not  subject  to  increase  or  diminution,  possessing  the  jurisdiction  in 
first  instance  of  cases  of  impeachment  of  federal  officers,  and  in  dernier 
ressort  of  appeals  in  international  matters  affecting  ambassadors,  captures 
from  the  enemy,  piracies  and  felonies  committed  on  the  high  seas,  cases  in- 
volving foreigners,  and  the  construction  of  treaties,  "  or  which  may  arise  on 
any  of  the  Acts  for  regulation  of  trade,  or  the  collection  of  the  federal 
Revenue." 

6.  That  the  acts  of  the  Congress  in  accordance  with  the  original  and 
revised  Articles  of  Confederation,  and  treaties  made  and  ratified  under  the 
authority  of  the  United  States,  be  the  supreme  law  of  all  the  States,  insofar 
as  such  acts  or  treaties  relate  to  the  citizens  of  the  States,  that  the  Judiciaries 
be  bound  thereby  "  any  thing  in  the  respective  laws  of  the  individual  States 
to  the  contrary  notwithstanding,"  and  that  the  federal  Executive  be  author- 
ized to  use  the  power  of  the  States  "  to  enforce  and  compel  an  Obedience 
to  such  Acts,  or  an  observance  of  such  Treaties." 

7.  That  "  provision  be  made  for  the  admission  of  new  States  into  the 
Union." 

8.  That  naturalization  be  uniform  in  every  State. 

9.  and  last.  That  offenses  committed  in  one  State  be  tryable  in  any 
other  State  of  the  Union.1 

It  will  be  observed  that  this  plan,  although  recognizing  the  threefold  divi- 
sion of  powers,  is  nevertheless  to  be  looked  upon  as  a  revision  of  the  Articles 
of  Confederation,  with  important  additions,  not  as  a  substitute  for  them. 
It  was  vigorously  debated  but  it  found  little  favor  with  the  partisans  of 
the  national  plan,  or  indeed  with  those  desiring  to  provide  the  Union  with 
an  adequate  government,  while  preserving  the  rights  of  the  States.2     On  the 

1  Documentary  History,  Vol.  iii,  pp.  125-8. 

2  In  the  session  of  August  23d  the  question  of  granting  power  to  negative  State  legisla- 
tion was  revived  by  a  motion  of  Mr.  Pinckney.  The  diverging  views  of  two  delegates,  as 
reported  by  Mr.  Madison,  are  of  interest : 

Mr.   Wilson   considered   this  as  the  keystone  wanted  to  compleat  the  wide  arch  of 
Government  we  are  raising.     The  power  of  self-defence  had  been  urged  as  necessary  for 


CREATION    OF   THE   FEDERAL   LEGISLATURE 


179 


19th  of  June  it  was  moved  by  Mr.  King  of  Massachusetts  "whether  the 
Cofhittee  should  rise  &  Mr.  Randolphs  propositions  be  re-reported  without 
alteration,  which,"  as  Mr.  Madison  says,  "  was  in  fact  a  question  whether  Mr. 
R's  should  be  adhered  to  as  preferable  to  those  of  Mr.  Patterson  " ; 1  on  which 
question  the  States  divided  as  follows :  Massachusetts,  aye ;  Connecticut, 
aye;  New  York,  no;  New  Jersey,  no;  Pennsylvania,  aye;  Delaware,  no; 
Maryland,  divided;  Virginia,  aye;  North  Carolina,  aye;  South  Carolina, 
aye ;  Georgia,  aye. 

The  Randolph  plan,  as  amended  and  altered  in  the  committee,  was  there- 
fore reported  to  the  convention  and  served  as  the  basis  of  future  discus- 
sion. The  New  Jersey  plan,  however,  had  served  its  turn.  It  had  united 
the  advocates  of  the  States  and  made  it  clear  that  either  Mr.  Randolph's  plan 
would  prevail  or  that  a  compromise  would  have  to  be  reached  on  middle 
ground.  The  attitude  of  the  smaller  States  was  accurately  but  somewhat 
brutally  put  by  Mr.  Pinckney,  who  is  made  by  Mr.  Madison  to  say  that 
"  the  whole  comes  to  this,  as  he  conceived.  Give  N.  Jersey  an  equal  vote, 
and  she  will  dismiss  her  scruples,  and  concur  in  the  Nati1.  system."  2 

The  Patterson  plan  as  a  whole  out  of  the  way,  the  discussion  turned  on 
the  Randolph  resolutions  as  modified  in  such  a  way  as  to  give  the  States  an 
equal  representation  in  the  second  branch.  The  foundation  had  already  been 
laid  for  this  compromise  by  John  Dickinson  of  Delaware,  the  possibility 
of  such  a  solution  adverted  to  by  Roger  Sherman  of  Connecticut,  and  with-  Connecticut 
out  attributing  either  the  origin  or  the  success  of  the  project  to  the  repre- 
sentatives of  any  State  or  any  one  person,  the  delegation  of  the  State  of 
Connecticut,  which  Oliver  Ellsworth  declared  to  be  not  a  small  but  a  middle 
State,  seems  to  have  occupied  what  may  be  called  the  strategic  position. 
The  conciliatory  attitude  of  its  members  seemed  inclined  to  produce  concilia- 
tion, and  from  here  on  until  the  acceptance  of  the  principle  of  equality  Mr. 
Ellsworth  seems  to  have  played  the  leading  role.  Certain  it  is  that  the 
members  of  the  Connecticut  delegation  not  only  assumed  leadership  and 
stated  their  views  in  such  a  way  as  to  court  concession  from  the  larger 
States  by  showing  themselves  prepared  to  yield  proportional  representation 
in  the  first  branch,  but  Mr.  Ellsworth's  motion  of  the  29th  of  June  "  that 
the  rule  of  suffrage  in  the  2d.  branch  be  the  same  with  that  established  by 
the  articles  of  confederation,"  3  divided  the  States  equally  in  the  session  of 

the  State  Governments  —  It  was  equally  necessary  for  the  General  Government.  The 
firmness  of  Judges  is  not  of  itself  sufficient.  ...  It  will  he  better  to  prevent  the  passage 
of  an  improper  law.  than  to  declare  it  void  when  passed. 

Mr.  Rutlidge.  If  nothing  else,  this  alone  would  damn  and  ought  to  damn  the  Con- 
stitution. Will  any  State  ever  agree  to  be  bound  hand  it  foot  in  this  manner.  It  is 
worse  than  making  mere  corporations  of  them  whose  bye  laws  would  not  be  subject  to 
this  shackle.     Documentary  Historv,  Vol.  iii,  p.  602. 

i  Ibid.,  p.  162. 

2  Ibid.,  p.  136.  3  Ibid.,  p.  245. 


The 


Proposal 


180  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

July  2d,  leading  to  the  appointment  of  a  committee  of  one  from  each  State 
to  find  a  way  out.  This  Committee  of  the  States  reported  on  July  5th  the 
compromise  ultimately  adopted,  that  the  principle  of  proportional  representa- 
tion should  prevail  in  the  first  branch;  that,  in  the  second,  each  State  should 
have  an  equal  vote,  with  the  further  provision  that  revenue  bills  should 
originate  in  the  first  branch  and  should  not  be  altered  or  amended  in  the 
second,  which  latter  provision  was  changed  in  the  course  of  debate  by  per- 
mitting the  Senate  to  alter  but  not  to  originate  money  bills.  Or,  as  stated 
more  at  length  in  the  report  of  Mr.  Gerry,  on  behalf  of  the  Committee: 

That  the  subsequent  propositions  be  recommended  to  the  Convention  on 
condition  that  both  shall  be  generally  adopted.  I.  that  in  the  1st  branch  of 
the  Legislature  each  of  the  States  now  in  the  Union  shall  be  allowed  1  member 
for  every  40,000  inhabitants  of  the  description  reported  in  the  7th  Resolu- 
tion of  the  Com6,  of  the  whole  House :  that  each  State  not  containing  that 
number  shall  be  allowed  1  member:  that  all  bills  for  raising  or  appropriating 
money,  and  for  fixing  the  Salaries  of  the  officers  of  the  Govern1,  of  the  U. 
States  shall  originate  in  the  1st  branch  of  the  Legislature,  and  shall  not  be  al- 
tered or  amended  by  the  2d  branch :  and  that  no  money  shall  be  drawn  from 
the  public  Treasury,  but  in  pursuance  of  appropriations  to  be  originated  in  the 
1st  branch     II.  That  in  the  2d  branch  each  State  shall  have  an  equal  vote.1 

In  the  session  of  the  25th  of  June,  Mr.  Ellsworth  urged  "  the  necessity  of 
maintaining  the  existence  &  agency  of  the  States.  Without  their  co-operation 
it  would  be  impossible  to  support  a  Republican  Gov',  over  so  great  an  extent 
of  Country."  2  Dr.  Johnson  of  Connecticut  likewise  urged  "  the  necessity 
of  preserving  the  State  Govts. —  which  would  be  at  the  mercy  of  the  Gen1. 
Gov',  on  Mr.  Wilson's  plan";  and  on  the  question  to  agree  "that  the 
members  of  the  2d  branch  be  chosen  by  the  individual  Legislatures,"  nine 
States  voted  in  its  favor,  with  Pennsylvania  and  Virginia  in  the  negative. 

Thus,  Mr.  Dickinson's  original  motion,  which  laid  the  basis  for  the 
compromise,  was  reaffirmed  for  the  reason  stated  by  Mr.  Madison  in  a  note 
that  "  the  largest  States  particularly  Pennsylvania  &  Virginia  always  con- 
sidered the  choice  of  the  2d  Branch  by  the  State  Legislatures  as  opposed  to 
a  proportional  representation  to  which  they  were  attached  as  a  fundamental 
principle  of  just  Government.  The  smaller  States  who  had  opposite  views, 
were  reinforced  by  the  members  from  the  large  States  most  anxious  to  secure 
the  importance  of  the  State  Governments."  3 

In  reply  to  an  elaborate  and  somewhat  theoretical  disquisition  on  gov- 
ernment by  Mr.  Madison  in  the  session  of  the  28th,  Mr.  Sherman  of  Con- 
necticut curtly  and  correctly  said : 

The  question  is  not  what  rights  naturally  belong  to  men;  but  how  they 

1  Documentary  History,  Vol,  iii,  p.  270. 

"Ibid.,  p.  210. 

8  Journal  of  Debates,  Hunt  ed.,  Vol.  i,  p.  236  note. 


CREATION    OF   THE   FEDERAL   LEGISLATURE  181 

may  be  most  equally  &  effectually  guarded  in  Society.  And  if  some  give  up  Diversity 
more  than  others  in  order  to  obtain  this  end,  there  can  be  no  room  for  com- 
plaint. To  do  otherwise,  to  require  an  equal  concession  from  all,  if  it  would 
create  danger  to  the  rights  of  some,  would  be  sacrificing  the  end  to  the  means. 
The  rich  man  who  enters  into  Society  along  with  the  poor  man,  gives  up  more 
than  the  poor  man,  yet  with  an  equal  vote  he  is  equally  safe.  Were  he  to 
have  more  votes  than  the  poor  man  in  proportion  to  his  superior  stake  the 
rights  of  the  poor  man  would  immediately  cease  to  be  secure.  This  con- 
sideration prevailed  when  the  articles  of  Confederation  were  formed.1 

Matters  had  come  to  such  a  pass  that  Dr.  Franklin,  immediately  after  Mr. 
Sherman's  remarks,  proposed  that  hereafter  the  session  should  open  with 
prayer.  On  the  29th,  Dr.  Johnson  carried  the  matter  a  step  nearer  agree- 
ment by  a  series  of  timely  and  well  balanced  remarks : 

The  controversy  must  be  endless  whilst  Gentlemen  differ  in  the  grounds  of 
their  arguments ;  Those  on  one  side  considering  the  States  as  districts  of  peo- 
ple composing  one  political  Society ;  those  on  the  other  considering  them  as 
so  many  political  societies.  The  fact  is  the  States  do  exist  as  political  So- 
cieties, and  a  Gov',  is  to  be  formed  for  them  in  their  political  capacity,  as  well 
as  for  the  individuals  composing  them.  Does  it  not  seem  to  follow,  that  if 
the  States  as  such  are  to  exist  they  must  be  armed  with  some  power  of  self- 
defence.  .  .  .  On  the  whole  he  thought  that  as  in  some  respects  the  States 
are  to  be  considered  in  their  political  capacity,  and  in  others  as  districts  of  in- 
dividual citizens,  the  two  ideas  embraced  on  different  sides,  instead  of  being 
opposed  to  each  other,  ought  to  be  combined ;  that  in  one  branch  the  people, 
ought  to  be  represented,  in  the  other  the  States.2 

Later,  in  the  same  session,  Dr.  Johnson's  colleague,  Mr.  Ellsworth,  moved 
the  proposition  previously  quoted,  for  equality  of  suffrage  in  the  second 
branch,  in  accordance  with  the  Articles  of  Confederation,  and  in  support  of 
his  motion  he  is  reported  by  Mr.  Madison  to  have  said : 

He  was  not  sorry  on  the  whole  he  said  that  the  vote  just  passed,  had  de- 
termined against  this  rule  in  the  first  branch.  He  hoped  it  would  become  a 
ground  of  compromise  with  regard  to  the  2d.  branch.  We  were  partly  na- 
tional ;  partly  federal.  The  proportional  representation  in  the  first  branch 
was  conformable  to  the  national  principle  &  would  secure  the  large  States 
agst.  the  small.  An  equality  of  voices  was  conformable  to  the  federal  prin- 
ciple and  was  necessary  to  secure  the  Small  States  agst.  the  large.  He  trusted 
that  on  this  middle  ground  a  compromise  would  take  place.  He  did  not  see 
that  it  could  on  any  other.  And  if  no  compromise  should  take  place,  our 
meeting  would  not  only  be  in  vain  but  worse  than  in  vain.  To  the  Eastward 
he  was  sure  Mass'8,  was  the  only  State  that  would  listen  to  a  proposition  for 
excluding  the  States  as  equal  political  Societies,  from  an  equal  voice  in  both 
branches.  The  others  would  risk  every  consequence  rather  than  part  with 
so  dear  a  right.  An  attempt  to  deprive  them  of  it,  was  at  once  cutting  the 
body  of  America  in  two,  and  as  he  supposed  would  be  the  case,  somewhere 
about  this  part  of  it.     The  large  States  he  conceived  would  notwithstanding 

1  Documentary  History,  Vol.  iii,  p.  233. 
"Ibid.,  p.  237. 


182  THE   UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

the  equality  of  votes,  have  an  influence  that  would  maintain  their  superiority. 
.  .  .  The  power  of  self  defence  was  essential  to  the  small  States.  Nature  had 
given  it  to  the  smallest  insect  of  the  creation.  He  could  never  admit  that 
there  was  no  danger  of  combinations  among  the  large  States.  They  will 
like  individuals  find  out  and  avail  themselves  of  the  advantage  to  be  gained 
by  it.  .  .  .  Let  a  strong  Executive,  a  Judiciary  &  Legislative  power  be 
created;  but  Let  not  too  much  be  attempted;  by  which  all  may  be  lost.  He 
was  not  in  general  a  half-way  man,  yet  he  preferred  doing  half  the  good  we 
could,  rather  than  do  nothing  at  all.  The  other  half  may  be  added,  when  the 
necessity  shall  be  more  fully  experienced.1 

On  the  30th,  Mr.  Ellsworth's  motion  being  under  discussion,  its  mover 
thus  replied  to  Mr.  Wilson's  "  capital  objection  "  that  the  minority  would 
rule  the  majority: 

The  power  is  given  to  the  few  to  save  them  from  being  destroyed  by  the 
many.  If  an  equality  of  votes  had  been  given  to  them  in  both  branches,  the 
objection  might  have  had  weight.  Is  it  a  novel  thing  that  the  few  should 
have  a  check  on  the  many?  .  .  .  No  instance  of  a  Confederacy  has  existed 
in  which  an  equality  of  voices  has  not  been  exercised  by  the  members  of  it. 
We  are  running  from  one  extreme  to  another.  We  are  razing  the  founda- 
tions of  the  building.  When  we  need  only  repair  the  roof.  No  salutary 
measure  has  been  lost  for  want  of  a  majority  of  the  States,  to  favor  it.  If 
security  be  all  that  the  great  States  wish  for  the  1st.  branch  secures  them.  The 
danger  of  combinations  among  them  is  not  imaginary.  .  .  .2 

After  illustrating  the  possibility  of  this  he  appealed,  again  to  quote  Mr. 
Madison,  "  to  the  obligations  of  the  federal  pact  which  was  still  in  force, 
and  which  had  been  entered  into  with  so  much  solemnity,  persuading  him- 
self that  some  regard  would  still  be  paid  to  the  plighted  faith  under  which 
each  State,  small  as  well  as  great,  held  an  equal  right  of  suffrage  in  the 
general  Councils.  His  remarks  were  not  the  result  of  particular  or  local 
views.     The  State  he  represented  (Connecticut)  held  a  middle  rank."  3 

In  the  course  of  this  debate,  which  was  largely  between  Messrs.  Ells- 
worth and  Madison,  Dr.  Franklin  interposed,  saying: 

The  diversity  of  opinions  turns  on  two  points.  If  a  proportional  represen- 
tation takes  place,  the  small  States  contend  that  their  liberties  will  be  in  dan- 
ger. If  an  equality  of  votes  is  to  be  put  in  its  place,  the  large  States  say  that 
their  money  will  be  in  danger.  When  a  broad  table  is  to  be  made,  and  the 
edges  of  planks  do  not  fit,  the  artist  takes  a  little  from  both,  and  makes  a  good 
joint.  In  like  manner  here  both  sides  must  part  with  some  of  their  demands, 
in  order  that  they  may  join  in  some  accommodating  proposition.4 

This  was  indeed  an  olive  branch  from  a  large  State,  and  the  necessity  for 
a  compromise,  which  Dr.  Franklin  suggested,  was  made  evident  by  the  re- 

1  Documentary  History,  Vol.  iii,  pp.  245-7. 
=  Ibid.,  pp.  251-2. 
3  Ibid.,  p.  252. 
*  Ibid.,  p.  257. 


CREATION    OF   THE   FEDERAL   LEGISLATURE  183 

marks  of  Mr.  Bedford  of  Delaware,  who,  to  quote  Mr.  Madison's  report, 
"  contended  that  there  was  no  middle  way  between  a  perfect  consolidation 
and  a  mere  confederacy  of  the  States.  The  first  is  out  of  the  question,  and 
in  the  latter  they  must  continue  if  not  perfectly,  yet  equally  sovereign.  If 
political  Societies  possess  ambition,  avarice,  and  all  the  other  passions  which 
render  them  formidable  to  each  other,  ought  we  not  to  view  them  in  this  light 
here?  Will  not  the  same  motives  operate  in  America  as  elsewhere?  If  any 
gentleman  doubts  it  let  him  look  at  the  votes.  Have  they  not  been  dictated 
by  interest,  by  ambition?  Are  not  the  large  States  evidently  seeking  to 
aggrandize  themselves  at  the  expense  of  the  small?  They  think  no  doubt 
that  they  have  right  on  their  side,  but  interest  had  blinded  their  eyes. 
Look  at  Georgia.  Though  a  small  State  at  present,  she  is  actuated  by  the 
prospect  of  soon  being  a  great  one.  S.  Carolina  is  actuated  both  by  present  in- 
terest &  future  prospects.  She  hopes  too  to  see  the  other  States  cut  down  to 
her  own  dimensions.  N.  Carolina  has  the  same  motives  of  present  &  future 
interest.  Virga.  follows.  Maryd.  is  not  on  that  side  of  the  Question.  Pena. 
has  a  direct  and  future  interest.  Mass'8,  has  a  decided  and  palpable  interest 
in  the  part  she  takes.  Can  it  be  expected  that  the  small  States  will  act  from 
pure  disinterestedness."  *  After  appealing  to  experience,  Mr.  Bedford  thus 
continued : 

Give  the  opportunity,  and  ambition  will  not  fail  to  abuse  it.  The  whole 
History  of  mankind  proves  it.  The  three  large  States  have  a  common  in- 
terest to  bind  them  together  in  commerce.  But  whether  combination  as  we 
suppose,  or  a  competition  as  others  suppose,  shall  take  place  among  them, 
in  either  case,  the  smaller  States  must  be  ruined.  We  must  like  Solon  make 
such  a  Govern',  as  the  people  will  approve.  Will  the  smaller  States  ever 
agree  to  the  proposed  degradation  of  them. 

After  calling  attention  to  the  fact  that  all  were  agreed  that  the  powers  of 
Congress  should  be  enlarged  in  order  that  it  could  meet  its  obligations,  and 
after  adding  that  the  little  States  were  willing  to  comply  with  their  en- 
gagements, but  only  if  the  principle  of  equality  be  observed,  he  proceeded 
in  language  which  caused  no  little  commotion  among  the  delegations  on 
behalf  of  the  large  as  well  as  of  the  small  States: 

We  have  been  told  with  a  dictatorial  air  that  this  is  the  last  moment  for  a 
fair  trial  in  favor  of  a  Good  Governm'.  It  will  be  the  last  indeed  if  the  propo- 
sitions reported  from  the  Committee  go  forth  to  the  people.  He  was  under 
no  apprehensions.  The  Large  States  dare  not  dissolve  the  confederation. 
If  they  do  the  small  ones  will  find  some  foreign  ally  of  more  honor  and  good 
faith,  who  will  take  them  by  the  hand  and  do  them  justice.  He  did  not  mean 
by  this  to  intimidate  or  alarm.  It  was  a  natural  consequence ;  which  ought 
to  be  avoided  by  enlarging  the  federal  powers  not  annihilating  the  federal 

1  Documentary  History,  Vol.  iii,  pp.  259-260. 


184  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

system.     This  is  what  the  people  expect.     All  agree  in  the  necessity  of  a 
more  efficient  Gov1,  and  why  not  make  such  an  one ;  as  they  desire. 

Whereupon  Mr.  Ellsworth,  in  a  more  conciliatory  and  persuasive,  yet  hardly 
less  decided  way,  said : 

Under  a  National  Gov',  he  should  participate  in  the  National  Security,  as 
remarked  by  (Mr.  King)  but  that  was  all.  What  he  wanted  was  domestic 
happiness.  The  Nat1.  Gov',  could  not  descend  to  the  local  objects  on  which 
this  depended.  It  could  not  embrace  objects  of  a  general  nature.  He  turned  his 
eyes  therefore  for  the  preservation  of  his  rights  to  the  State  Gov'3.  From 
these  alone  he  could  derive  the  greatest  happiness  he  expects  in  this  life.  His 
happiness  depends  on  their  existence,  as  much  as  a  new-born  infant  on  its 
mother  for  nourishment.  If  this  reasoning  was  not  satisfactory,  he  had 
nothing  to  add  that  could  be  so.1 

Under  these  circumstances,  the  convention  adjourned  on  Saturday,  June 
30th,  and  after  an  interval  of  a  day  in  which  to  reflect,  met  on  July  2d.  The 
Sunday  was  indeed  a  godsend  to  the  small  States,  for  when  the  Convention 
adjourned  on  Monday,  July  2d,  the  vote  upon  Mr.  Ellsworth's  motion  was 
had,  resulting  in  a  tie,  Massachusetts,  Pennsylvania,  Virginia,  North 
Carolina,  and  South  Carolina  voting  against,  Connecticut,  New  York  (then 
considered  one  of  the  smaller  States),  New  Jersey,  Delaware,  and  Mary- 
land voting  for,  with  Georgia  divided.  Mr.  Ellsworth's  friendship  with  Mr. 
Baldwin  had  borne  its  fruit.  Whereupon,  General  Charles  Cotesworth 
Pinckney,  a  man  of  large  experience  and  of  broad  views,  although  as  set 
upon  the  rights  of  his  State  as  any  man  could  be,  said  that  "  some  compro- 
mise seemed  to  be  necessary:  the  States  being  exactly  divided  on  the  ques- 
tion for  an  equality  of  votes  in  the  2d.  branch.  He  proposed  that  a  Com- 
mittee consisting  of  a  member  from  each  State  should  be  appointed  to  de- 
vise &  report  some  compromise."  2 

Doubtless  General  Pinckney's  motion  appealed  to  the  good  sense  of  his 
colleagues  open  to  conviction,  for,  as  Mr.  Sherman  said,  the  Convention 
was  "  now  at  a  full  stop,  and  nobodv  he  supposed  meant  that  we  shd.  break 
up  without  doing  something.  A  Committee  he  thought  most  likely  to  hit 
on  some  expedient."  3  Dr.  Williamson  of  North  Carolina,  whose  State  had 
voted  against  equality,  added  that  "If  we  do  not  concede  on  both  sides,  our 
business  must  soon  be  at  an  end."  He  favored  the  commitment,  "  supposing 
that  as  the  Com".  wd.  be  a  smaller  body,  a  compromise  would  be  pursued 
with  more  coolness."  4  Mr.  Gerry  of  Massachusetts,  later  to  be  Vice  Presi- 
dent with  Mr.  Madison  as  President  of  the  United  States,  likewise  was  for 
the  commitment,   saying,    "  Something  must   be   done,    or   we   shall   disap- 

1  Documentary  History,  Vol.  iii,  p.  261. 

-lbui.,  p.  264. 

3  Ibid. 

*  Ibid.,  p.  268. 


CREATION    OF   THE   FEDERAL   LEGISLATURE  185 

point  not  only  America,  but  the  whole  world."  He  suggested  a  considera- 
tion of  the  state  "  we  should  be  thrown  into  by  the  failure  of  the  Union.  We 
should  be  without  an  Umpire  to  decide  controversies  and  must  be  at  the 
mercy  of  events.  What  too  is  to  become  of  our  treaties  —  what  of  our 
foreign  debts,  what  of  our  domestic?  We  must  make  concessions  on  both 
sides.  Without  these  the  constitutions  of  the  several  States  would  never  have 
been  formed."  1 

So  the  question  was  debated,  decided  in  the  affirmative,  and  the  com- 
mittee, elected  by  ballot,  consisted  of  Messrs.  Gerry,  Ellsworth,  Yates,  Patter- 
son, Franklin,  Bedford,  Martin  (of  Maryland),  Mason,  Davie,  Rutledge,  and 
Baldwin.  "  That  time  might  be  given  to  the  Comittee,  and  to  such  as  chose 
to  attend  to  the  celebration  on  the  anniversary  of  Independence,  the  Conven- 
tion adjourned  till  Thursday."  2 

On  Thursday,  July  5th,  the  committee  reported  the  compromise  whose 
terms  had  properly  been  suggested  by  Dr.  Franklin.3  The  report  was  de- 
bated from  every  point  of  view  and  amended  in  certain  particulars  that 
need  not  detain  us;  and  on  July  16,  1787,  the  convention  adopted  it  as 
amended,  including,  as  Mr.  Madison  says,  "  the  equality  of  votes  in  the  2d. 
branch," 4  Connecticut,  New  Jersey,  Delaware,  Maryland,  North  Carolina, 
voting  for,  Pennsylvania,  Virginia,  South  Carolina  and  Georgia  against, 
Massachusetts  divided,  New  York  absent  and  New  Hampshire  not  as  yet  rep- 
resented, both  of  which  States  would  have  voted  for  the  compromise. 

The  irritation  of  the  larger  States  upon  the  victory  of  the  smaller  was  victory 
voiced  by  Mr.  Randolph,  who,  stating  that  it  would  be  "  in  vain  to  come   i?™^1ser 
to  any  final  decision  with  a  bare  majority  on  either  side,"  wished  "  the  Con- 
vention might  adjourn,  that  the  large  States  might  consider  the  steps  proper 
to  be  taken  in  the  present  solemn  crisis  of  the  business,  and  that  the  small 

1  Documentary  History,  Vol.  iii,  p.  269. 

2  lb  id.,  pp.  269-270. 

s  Ibid.,  p.  270.  "  Tuesday,  July  3,  1787. 

"The  grand  committee  met.     Mr.  Gerry  was  chosen  chairman. 

"  The  committee  proceeded  to  consider  in  what  manner  they  should  discharge  the  busi- 
ness with  which  they  were  intrusted.  By  the  proceedings  in  the  Convention,  they  were  so 
equally  divided  on  the.  important  question  of  representation  in  the  two  branches,  that  the 
idea  of  a  conciliatory  adjustment  must  have  been  in  contemplation  of  the  house  in  the  ap- 
pointment of  this  committee.  But  still,  how  to  effect  this  salutary  purpose  was  the  question. 
Many  of  the  members,  impressed  with  the  utility  of  a  general  government,  connected  with 
it  the  indispensable  necessity  of  a  representation  from  the  states  according  to  their  num- 
bers and  wealth;  while  others,  equally  tenacious  of  the  rights  of  the  states,  would  admit  of 
no  other  representation  but  such  as  icas  strictly  federal,  or,  in  other  words,  equality  of  suf- 
frage. This  brought  on  a  discussion  of  the  principles  on  which  the  house  had  divided,  and  a 
lengthy  recapitulation  of  the  arguments  advanced  in  the  house  in  support  of  these  opposite 
propositions.  As  I  had  not  openly  explained  my  sentiments  on  any  former  occasion  on  this 
question,  but  constantly,  in  giving  my  vote,  shozved  my  attachment  to  the  national  govern- 
ment on  federal  principles,  I  took  this  occasion  to  explain  my  motives. 

"These  remarks  gave  rise  to  a  motion  of  Dr.  Franklin,  which  after  some  modification 
was  agreed  to,  and  made  the  basis  of  the  following  report  of  the  Committee."  Yates, 
Secret  Proceedings,  p.  205. 

*  Documentary  History,  Vol.  iii,  p.  343. 


1S6  THE    UNITED   STATES:    A    STUDY    IX    INTERNATIONAL   ORGANIZATION 

States  might  also  deliberate  on  the  means  of  conciliation."  *     The  smaller 
States,   however,   had  carried  their  point,   and  while  they  were  willing  to 
adjourn  they  were  in  no  disposition  to  reconsider.     Indeed,  Air.  Patterson 
of  Xew  Jersey,  as  reported  by   Mr.   Madison,  "  thought  with   Mr.   R.  that 
it  was  high  time  for  the  Convention  to  adjourn  that  the  rule  of  secrecy 
ought  to  be  rescinded,  and  that  our  Constituents  should  be  consulted.     No 
conciliation  could  be  admissible  on  the  part  of  the  smaller  States  on  any 
other  ground  than  that  of  an  equality  of  votes  in  the  2d.  branch.     If  Mr. 
Randolph  would  reduce  to  form  his  motion  for  an  adjournment  sine  die,  he 
would  second  it  with  all  his  heart.'-     Mr.   Randolph  explained  that  he  did 
not  mean  to  move  adjournment  sine  die,  but  until  the  morrow  "  in  order 
that  some  conciliatory  experiment  might  if  possible  be  devised,  and  that  in 
case  the  smaller  States  should  continue  to  hold  back,  the  larger  might  then 
take  such  measures,  he  would  not  say  what,  as  might  be  necessary."     Mr. 
Patterson,  being  in  an  obliging  spirit,  seconded  the  adjournment,  "  till  to- 
morrow, as  an  opportunity  seemed  to  be  wished  by  the  larger  States  to 
deliberate  further  on  conciliatory  expedients."     On  the  question  of  adjourn- 
ment the  States  divided  equally,  and  the  convention  adjourned ;  but  before 
doing  so,  they  tied  once  on  the  question,  and  the  frame  of  mind  of  the  con- 
vention as  well  as  of  the  delegations  from  the  larger  States  is  perhaps  to  be 
gathered  from  the  following  remarks  of  Mr.   Rutledge,  who,  according  to 
Mr.  Madison,  "  could  see  no  need  of  an  adjourn',  because  he  could  see  no 
chance  of  a  compromise.     The  little  States  were  fixt.     They  had  repeatedly 
&  solemnly  declared  themselves  to  be  so.     All  that  the  large  States  then  had 
to  do,  was  to  decide  whether  they  would  yield  or  not.     For  his  part  he  con- 
ceived that  altho'  we  could  not  do  what  we  thought  best,  in  itself,  we  ought 
to  do  something.     Had  we  not  better  keep  the  Gov',  up  a  little  longer,  hoping 
that  another  Convention  will  supply  our  omissions,  than  abandon  every  thing 
to   hazard.     Our   Constituents   will   be   very   little   satisfied   with   us   if   we 
take  the  latter  course."  - 

The  members  from  the  larger  States  wrere  apparently  in  a  sorry  plight. 
They  could  not  break  up  the  Convention  on  the  ground  that  they  were  un- 
willing to  compromise,  they  could  not  admit  that  they  were  outgeneraled 
by  the  little  States,  they  could  not  form  a  Confederation  composed  of  them- 
selves, because  they  were  not  contiguous,  and  even  large  bricks  require  mortar 
to  hold  together.  The  situation  is  thus  stated  in  a  passage  from  Mr.  Madi- 
son's Notes,  interposed  between  the  adjournment  after  the  vote  and  before  the 
meeting  of  the  17th: 

On  the  morning  following  before  the  hour  of  the  Convention  a  number  of 

1  Documentary  History,  Vol.  iii,  pp.  345-6. 

2  Ibid.,  p.  347. 


CREATION    OF   THE   FEDERAL   LEGISLATURE  187 

the  members  from  the  larger  States,  by  common  agreement  met  for  the  pur-  ™eFirst 
pose  of  consulting  on  the  proper  steps  to  be  taken  in  consequence  of  the  vote  p/omise0™1 
in  favor  of  an  equal  Representation  in  the  2d  branch,  and  the  apparent  in- 
flexibility of  the  smaller  States  on  that  point —  Several  members  from  the  lat- 
ter States  also  attended.  The  time  was  wasted  in  vague  conversation  on  the 
subject,  without  any  specific  proposition  or  agreement.  It  appeared  indeed 
that  the  opinions  of  the  members  who  disliked  the  equality  of  votes  differed 
so  much  as  to  the  importance  of  that  point,  and  as  to  the  policy  of  risking  a 
failure  of  any  general  act  of  the  Convention  by  inflexibly  opposing  it.  Sev- 
eral of  them  supposing  that  no  good  Governm'.  could  or  would  be  built  on 
that  foundation,  and  that  as  a  division  of  the  Convention  into  two  opinions 
was  unavoidable  it  would  be  better  that  the  side  comprising  the  principal 
States,  and  a  majority  of  the  people  of  America,  should  propose  a  scheme 
of  Gov',  to  the  States,  than  that  a  scheme  should  be  proposed  on  the  other 
side,  would  have  concurred  in  a  firm  opposition  to  the  smaller  States,  and  in  a 
separate  recommendation,  if  eventually  necessary.  Others  seemed  inclined 
to  yield  to  the  smaller  States,  and  to  concur  in  such  an  Act  however  imper- 
fect &  exceptionable,  as  might  be  agreed  on  by  the  Convention  as  a  body, 
tho'  decided  by  a  bare  majority  of  States  and  by  a  minority  of  the  people  of 
the  U.  States.  It  is  probable  that  the  result  of  this  consultation  satisfied 
the  smaller  States  that  they  had  nothing  to  apprehend  from  a  Union  of  the 
larger,  in  any  plan  whatever  ag8'.  the  equality  of  votes  in  the  2d.  branch.1 

So  much  for  the  first  compromise,  which  made  the  proposed  Constitu-  |econd 
tion  probable.  Next,  for  the  second  compromise,  which  made  it  a  fact.  ComPromise 
And  it  is  interesting  to  note  that  the  second,  like  the  first,  deals  with  the 
question  of  suffrage,  although  it  is  confined  to  the  first  branch,  involving 
questions  of  interest  to  the  States  as  such.  The  compromise  involved  one 
member  of  Congress  for  every  forty  thousand  inhabitants  of  the  State, 
divided  into  districts  popularly  called  Congressional  Districts.  The  southern 
States,  in  which  slavery  prevailed,  insisted  that  the  slaves  should  be  counted 
among  the  inhabitants,  Mr.  Butler  and  General  Pinckney  of  South  Carolina 
going  so  far  as  to  insist  that  they  should  be  "  included  in  the  rule  of  Repre- 
sentation equally  with  the  whites,"  2  whereas,  after  much  misgiving,  the  dele- 
gations of  the  other  States  were  willing  to  allow  five  negroes  to  be  counted 
as  three  for  the  purpose  of  votes  in  such  States  where  slavery  existed,  on 
the  ground  that  such  a  proportion  had  been  approved  by  eleven  of  the  States 
in  the  Congress  of  1783. 3  Again,  the  southern  States  insisted  upon  the 
right  to  continue  the  slave  trade,  at  least  for  a  period  of  twenty  years,  which 
was  very  galling  to  the  members  of  the  States  where  slavery  did  not  exist 
and  distasteful  to  some  of  the  members  of  the  slave  States.4     It  happened, 

1  Documentary  History,  Vol.  iii,  pp.  347-8. 
■-  Ibid.,  p.  308.     Session  of  July  11th. 

3  Ibid.,  p.  323.     Session  of  July  12th. 

4  Mr.  Madison  expressed  the  following  opinion: 

Twenty   years   will   produce    all    the   mischief   that    can    be   apprehended    from   the 
liberty  to  import  slaves.     So   long  a   term   will   be   more   dishonorable   to   the   National 
character  than  to  say  nothing  about  it  in  the  Constitution.     Ibid.,  p.  616. 
During  the  same  session  (that  of  August  25th)   Mr.  Madison  stated  that  he  "thought  it 


188  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

and  this  is  the  ground  for  the  second  compromise,  that  the  southern  States, 
producing  products  for  exportation,  were  anxious  to  prevent  regulations  of 
commerce  which  would  enable  the  Congress  to  do  so  by  a  mere  majority, 
wishing  a  two-thirds  vote  in  such  cases  for  their  protection.  The  eastern 
States,  under  the  lead  of  Massachusetts,  were  unwilling  to  consent  to  this, 
as  they  were  commercial  States  and  changes  in  the  regulations  proving  de- 
sirable would  be  very  difficult  if  a  two-thirds  vote  were  required. 

The  opposition  of  the  States  to  a  tax  upon  their  exports  was  met  by  a 
provision  that  no  tax  or  duty  should  be  laid  on  articles  exported  from  any 
State,  but  the  commercial  States  were  unwilling  to  be  bound  hand  and  foot, 
as  they  thought  they  would  be,  by  a  two-thirds  vote  on  the  part  of  the 
legislature  to  regulate  commerce,  Mr.  Gorham  of  Massachusetts  saying  on  this 
very  question  that  "  He  desired  it  to  be  remembered  that  the  Eastern  States 
had  no  motive  to  Union  but  a  commercial  one.  They  were  able  to  protect 
themselves.  They  were  not  afraid  of  external  danger  and  did  not  need  the) 
aid  of  the  South".  States."  J 

Section  6,  Article  VII,  of  the  draft  of  the  Constitution  as  reported  on 
August  6th,  provided  that,  "  No  navigation  act  shall  be  passed  without  the 
assent  of  two  thirds  of  the  members  present  in  each  House."  2  At  the  session 
of  August  226.  this  clause  was,  together  with  that  relating  to  the  importation 
of  slaves,  referred  to  a  committee  composed  of  a  member  from  every  State, 
which  recommended  two  days  later  that  the  importation  of  slaves,  euphemisti- 
cally called  "  such  persons  as  the  several  States  now  existing  shall  think  proper 
to  admit,"  be  not  prohibited  prior  to  the  year  1800,  but  that  a  tax  upon  mere 
migration  or  importation  might  be  laid,  and  that  Section  6,  requiring  a  two- 
thirds  vote  for  a  navigation  act,  be  omitted.3  On  August  29th  the  report  of 
this  committee  on  the  question  of  navigation  came  up  for  discussion.  When 
the  report  was  presented,  Mr.  Pinckney  of  South  Carolina  moved  to  insert 
the  two-thirds  requirement,  which  had  been  omitted  by  the  committee,  and 
in  support  of  this  motion  remarked,  as  reported  by  Mr.  Madison,  that  there 
were  five  distinct  commercial  interests:  "  1.  the  fisheries  &  W.  India  trade, 
which  belonged  to  the  N.  England  States.  2.  the  interest  of  N.  York  lay 
in  a  free  trade.  3.  Wheat  &  flour  the  Staples  of  the  two  middle  States, 
(N.  J.  &  Penna.)— 4.  Tob",  the  staple  of  Maryd.  &  Virginia  &  partly  of 
X.  Carolina.  5.  Rice  &  Indigo,  the  staples  of  S.  Carolina  &  Georgia.  These 
different  interests  would  be  a  source  of  oppressive  regulations  if  no  check 
to  a  bare  majority  should  be  provided.  States  pursue  their  interests  with 
less  scruple  than   individuals.     The  power  of   regulating  commerce  was  a 

wrong  to  admit  in  the  Constitution  the  idea  that  there   could  be  property  in  men."    Docu- 
mentary History,  Vol.  iii,  p.  618. 

1Ibid.,  p.  591.     Session  of  August  22d. 

2  Ibid.,  p. 

s  Ibid.,  p-  ' 


CREATION    OF   THE   FEDERAL   LEGISLATURE  189 

pure  concession  on  the  part  of  the  S.  States.  They  did  not  need  the  protec- 
tion of  the  N.  States  at  present."  J  To  this  statement  General  Pinckney, 
likewise  of  South  Carolina,  added  that  "  it  was  the  true  interest  of  the 
S.  States  to  have  no  regulation  of  commerce ;  but  considering  the  loss  brought 
on  the  commerce  of  the  Eastern  States  by  the  revolution,  their  liberal  con- 
duct towards  the  views  of  South  Carolina,  and  the  interest  the  weak  South". 
States  had  in  being  united  with  the  strong  Eastern  States,  he  thought  it 
proper  that  no  fetters  should  be  imposed  on  the  power  of  making  commer- 
cial regulations ;  and  that  his  constituents  though  prejudiced  against  the 
Eastern  States,  would  be  reconciled  to  this  liberality  —  He  had  himself,  he 
said,  prejudices  ag8'.  the  Eastern  States  before  he  came  here,  but  would 
acknowledge  that  he  had  found  them  as  liberal  and  candid  as  any  man 
whatever."  The  liberality  and  candor  of  South  Carolina  to  which  General 
Pinckney  referred  are  thus  stated  by  Mr.  Madison  in  a  note  of  later  date: 

He  [General  Pinckney]  meant  the  permission  to  import  slaves.  An  un- 
derstanding on  the  two  subjects  of  navigation  and  slavery,  had  taken  place 
between  those  parts  of  the  Union,  which  explains  the  vote  on  the  Motion  de- 
pending, as  well  as  the  language  of  Gen1.  Pinkney  &  others.2 

In  the  course  of  the  very  interesting  debate  which  ensued,  the  delegates 
of  the  States  supposed  to  be  affected  by  the  two-thirds  requirement,  or  by  a 
navigation  law  of  any  kind,  laid  the  views  of  their  States  before  the  Con- 
vention with  commendable  frankness.  Mr.  Butler  of  South  Carolina,  for 
example,  speaking  for  the  southern  States,  said  that  "  he  considered  the  in- 
terests of  these  and  of  the  Eastern  States,  to  be  as  different  as  the  interests 
of  Russia  and  Turkey."  But  nevertheless,  "  desirous  of  conciliating  the  affec- 
tions of  the  East:  States,"  he  said  he  should  vote  against  the  two-thirds  re- 
quirement instead  of  a  majority.3  Mr.  Mason  of  Virginia,  bitterly  opposed 
to  slavery  and  its  recognition  in  the  Constitution,  said : 

If  the  Gov1,  is  to  be  lasting,  it  must  be  founded  in  the  confidence  &  af- 
fections of  the  people,  and  must  be  so  constructed  as  to  obtain  these.  The 
Majority  will  be  governed  by  their  interests.  The  Southern  States  are  the 
minority  in  both  Houses.  Is  it  to  be  expected  that  they  will  deliver  them- 
selves bound  hand  &  foot  to  the  Eastern  States,  and  enable  them  to  exclaim, 
in  the  words  of  Cromwell  on  a  certain  occasion  — "  the  lord  hath  delivered 
them  into  our  hands." 

So  much  for  the  views  of  the  southern  States,  to  which  Mr.  Gorham,  who 
had  already  expressed  himself  on  the  subject,  replied : 

If  the  Government  is  to  be  so  fettered  as  to  be  unable  to  relieve  the  Eastern 

1  Documentary  History,  Vol.  iii,  pp.  636-7. 
-  Ibid.,  p.  637. 
3  Ibid.,  p.  639. 


J 


190 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Grant  of 
Legis- 
lative 

Power 


States  what  motive  can  they  have  to  join  it,  and  thereby  tie  their  own  hands 
from  measures  which  they  could  otherwise  take  for  themselves.  T.he  East- 
ern States  were  not  led  to  strengthen  the  Union  by  fear  for  their  own  safety. 
He  deprecated  the  consequences  of  disunion,  but  if  it  should  take  place  it 
was  the  Southern  part  of  the  Continent  that  had  the  most  reason  to  dread 
them.  He  urged  the  improbability  of  a  combination  against  the  interest  of 
the  Southern  States,  the  different  situations  of  the  Northern  &  Middle  States 
being  a  security  against  it.  It  was  moreover  certain  that  foreign  ships  would 
never  be  altogether  excluded  especially  those  of  Nations  in  treaty  with  us.1 

The  question  had  become  one  of  Union  or  no  Union,  the  Constitution 
or  no  Constitution,  and  as  the  eastern  and  southern  States  had  reached  an 
understanding  there  appeared  nothing  for  the  delegates  of  the  northern  and 
middle  States  to  do  but  to  confirm  that  understanding,  or  to  renounce  the 
attempt  to  unite.  Indeed,  the  delegates  appear  to  have  been  so  impressed 
with  the  necessity  of  this  that  the  report  of  the  committee  eliminating  the 
requirements  of  "  two  thirds  of  each  House  to  pass  a  navigation  act  "  was, 
as  Mr.  Madison  says,  "  then  agreed  to.  nem  :  con :  " 

As  a  result  of  these  two  compromises,  which  have  been  stated  at  some 
length,  the  obstacles  in  the  way  of  a  Constitution  of  the  kind  proposed  in 
the  Randolph  resolutions  were  circumvented  if  they  were  not  wholly  re- 
moved ;  and  the  concessions  upon  which  the  compromises  were  based  ap- 
pear to  have  been  not  concessions  of  the  members  as  such,  nor  of  the  people 
as  such,  but  of  the  States,  represented  in  their  political  capacity,  in  the  matter 
of  equality;  and  of  the  States  in  the  second  compromise,  or  of  the  interests 
of  the  people  of  the  different  States,  to  be  affected,  on  the  one  hand,  by 
slavery,  and  by  navigation  laws  on  the  other. 

It  will  be  observed  that  the  question,  and  therefore  the  compromise,  in 
each  case  related  to  the  legislative  branch  of  the  proposed  government. 
In  comparison  with  these  questions,  the  powers  to  be  granted  to  the  legisla- 
tive department  were  matters  of  detail,  for  it  was  generally  agreed  that 
this  department  should  possess  the  powers  granted  to  the  Congress  by  the 
Articles  of  Confederation  and  certain  added  powers  in  order  to  render  the 
proposed  government  adequate  to  the  exigencies  of  the  Union.  Two  of 
these  powers  were  admittedly  those  to  impose  taxes  in  order  to  raise  a 
revenue,  and  to  regulate  commerce  with  foreign  nations  and  among  the 
States  themselves. 

Two  points  are  to  be  observed  in  this  connection,  that  the  grant  of  legis- 
lative powers  was  not  general,  as  in  the  case  of  the  Judiciary,  by  virtue 
whereof  the  judicial  power  of  the  United  States  is  vested  in  a  Supreme 
and  inferior  courts,  the  Constitution  saying,  in  regard  to  the  legislature, 
that  all  legislative  powers  herein  granted  "  shall  be  vested  in  the  Congress 


1  Documentary  History,  Vol.  iii,  pp.  641-2. 


CREATION    OF   THE   FEDERAL   LEGISLATURE  191 

of  the  United  States,"  to  consist  of  a  Senate  and  House  of  Representatives. 
As,  therefore,  the  Union  did  not  exist  of  itself  but  had  to  be  created,  and 
as  the  government  of  this  Union,  composed  of  three  branches,  had  likewise 
to  be  created  by  the  States,  which  already  existed,  it  follows  that  the  legis- 
lative department  could  possess  only  such  powers  which  the  delegates  of 
the  States,  subsequently  confirmed  by  conventions  of  the  States,  granted 
either  directly  or  by  necessary  implication  to  the  legislative  department  of  the 
government  of  the  Union. 

But  the  powers  granted  are  wisely  enumerated  in  general  terms,  leaving 
the  Congress  free  to  exercise  its  discretion  in  the  choice  of  means  to  carry 
out  the  powers  expressly  or  impliedly  granted,  and  the  legislature  as  well  as 
the  Supreme  Court  has  never  forgotten,  the  one  in  passing  laws,  the  other 
in  interpreting  and  applying  them,  that  each  was  dealing  with  a  Constitu- 
tion. 

The  second  observation  is  that  the  powers  were  to  be  exercised  in  such 
a  way  as,  to  quote  the  language  of  Section  8  of  Article  I  of  the  completed 
Constitution,  "  to  provide  for  the  common  defense  and  general  welfare  of 
the  United  States,"  and,  within  the  express  or  implied  grant  of  powers  for 
this  great  purpose,  "  to  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all  other  powers  vested 
in  this  Constitution  in  the  government  of  the  United  States  or  any  depart- 
ment or  officer  thereof." 


IX 
CREATION  OF  THE  EXECUTIVE 

But  because  the  Laws,  that  are  at  once,  and  in  a  short  time  made,  have  a  constant  and 
lasting  Force,  and  need  a  perpetual  Execution,  or  an  attendance  thereunto:  Therefore 
'tis  necessary  there  should  be  a  Power  always  in  Being,  which  should  see  to  the  Execution 
of  the  Laws  that  are  made,  and  remain  in  Force.  And  thus  the  Legislative  and  Executive 
Power  come  often  to  be  separated.  (John  Locke,  Two  Treaties  of  Government,  l6go,  Book 
11,  Ch.  XII,  Section  144,  Works,  edition  of  1714,  Vol.  11.) 

Section  1.  The  executive  Power  shall  be  vested  in  a  President  of  the  United  States  of 
America.  He  shall  hold  his  Office  during  the  Term  of  four  Years,  and,  together  with  the 
Vice  President,  chosen  for  the  same  Term,  be  elected,  as  follows  .  .  . 

Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take  the  following  Oath  or 
Affirmation: — "I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute  the  Office  of 
President  of  the  United  States,  and  will  to  the  best  of  my  Ability,  preserve,  protect  and 
defend  the  Constitution  of  the  United  States." 

Section  2.    ... 

He  shall  have  Power,  by  and  with  the  Advice  and  Consent  of  the  Senate,  to  make 
Treaties,  provided  two  thirds  of  the  Senators  present  concur ;  and  he  shall  nominate,  and 
by  and  with  the  Advice  and  Consent  of  the  Senate,  shall  appoint  Ambassadors,  other  public 
Ministers  and  Consuls,  Judges  of  the  supreme  Court,  and  all  other  Officers  of  the  United 
States,  whose  Appointments  are  not  herein  otherwise  provided  for,  and  which  shall  be 
established  by  Law :  but  the  Congress  may  by  Law  vest  the  Appointment  of  such  inferior 
Officers,  as  they  think  proper,  in  the  President  alone,  in  the  Courts  of  Law,  or  in  the 
Heads  of  Departments.  .  .  . 

Section  3.  He  shall  from  time  to  time  give  to  the  Congress  Information  of  the  State 
of  the  Union,  and  recommend  to  their  Consideration  such  Measures  as  he  shall  judge 
necessary  and  expedient;  he  may,  on  extraordinary  Occasions,  convene  both  Houses,  or 
either  of  them,  and  in  Case  of  Disagreement  between  them,  with  Respect  to  the  Time  of 
Adjournment,  he  may  adjourn  them  to  such  Time  as  he  shall  think  proper;  he  shall  receive 
Ambassadors  and  other  public  Ministers ;  he  shall  take  Care  that  the  Laws  be  faithfully  exe- 
cuted,  and   shall   Commission   all   the   Officers   of  the   United   States. 

Section  4.  The  President,  Vice  President  and  all  civil  Officers  of  the  United  States, 
shall  be  removed  from  Office  on  Impeachment  for,  and  Conviction  of,  Treason,  Bribery,  or 
other  high  Crimes  and  Misdeameanors.     (Constitution  of  the   United  States,  Article  II.) 

Soon  after  the  adjournment  of  the  federal  Convention  some  one  said  to  Benjamin 
Franklin,  "Well,  Doctor,  have  you  given  us  a  republic  or  a  monarchy?"  Franklin  re- 
plied, "  A  republic,  if  you  can  keep  it."  (Andrew  C.  McLaughlin,  The  Courts,  The  Con- 
stitution and  Parties,  1912,  p.  151.) 

By  the  constitution  of  the  United  States,  the  President  is  invested  with  certain  impor- 
tant political  powers,  in  the  exercise  of  which  he  is  to  use  his  own  discretion,  and  is 
accountable  only  to  his  country  in  his  political  character,  and  to  his  own  conscience.  .  .  . 
The  subjects  are  political.  They  respect  the  nation,  not  individual  rights,  and  being  en- 
trusted to  the  executive,  the  decision  of  the  executive  is  conclusive.  .  .  . 

The  province  of  the  court  is,  solely,  to  decide  on  the  rights  of  individuals  not  to  enquire 
how  the  executive,  or  executive  officers,  perform  duties  in  which  they  have  a  discretion. 
Questions,  in  their  nature  political,  or  which  are,  by  the  constitution  and  laws,  submitted  to 
the  executive,  can  never  be  made  in  this  emirt.  (Chief  Justice  Marshall  in  Marbury  v. 
Madison,  I  Cranch,  137,  165-166,  170,  decided  in  1S03.) 

These  orders,  given  by  the  executive,  under  the  construction  of  the  act  of  congress  made 
by  the  department  to  which  its  execution  was  assigned,  enjoin  the  seizure  of  American 
vessels  sailing  from  a  French  port.  Is  the  officer  who  obeys  them  liable  for  damages  sus- 
tained by  this  misconstruction  of  the  act,  or  will  his  orders  excuse  him?  If  his  instructions 
afford  him  no  protection,  then  the  law  must  take  its  course,  and  he  must  pay  such  damages 
as  are  legally  awarded  against  him ;  .  .  . 

...  I   was  strongly  inclined   to  think,  that  where,   in  consequence  of  orders   from   the 

192 


CREATION    OF   THE   EXECUTIVE 


193 


legitimate  authority,  a  vessel  is  seized,  with  pure  intention,  the  claim  of  the  injured  party 
for  damages  would  be  against  that  government  from  which  the  orders  proceeded,  and 
would  be  a  proper  subject  for  negotiation.  But  I  have  been  convinced  that  I  was  mistaken, 
and  I  have  receded  from  this  first  opinion.  I  acquiesce  in  that  of  my  brethren,  which,  is, 
that  the  instructions  cannot  change  the  nature  of  the  transaction,  nor  legalize  an  act  which, 
without  those  instructions,  would  have  been  a  plain  trespass.  {Chief  Justice  Marshall  in 
The  Flying  Fish,  2  Cranch,  170,  178,  179,  decided  in  1804.) 

There  is  another  feature  common  to  both  governments.  In  England  the  king  has  his 
constitutional  counsellors  and  councils.  The  peers  of  the  realm  are,  by  their  birth,  heredi- 
tary counsellors  of  the  crown ;  and  may  be  called  together  by  the  king  to  impart  their  ad- 
vice, [4  Bl.  Com.]  227.  The  judges  are  a  council  for  law  matters,  229.  But  the  principal 
council  is  the  privy  council,  and  by  way  of  eminence  is  called  the  council,  229.  So  the  pres- 
ident has  his  councils.  "He  may  require  the  opinion  in  writing  of  the  principal  officer  at 
the  head  of  each  of  the  executive  departments,"  &c.  2  Sec.  2  Art,  Clause  2,  Const.  This  is 
called  a  cabinet  council;  it  is  a  privy  council,  in  which  the  president  is  present,  as  the  king  is  in 
person  in  his.  4  Bl.  Com.  231.  The  senate  is  the  council  in  making  treaties,  in  advising 
and  consenting  to  appointments  to  office.  Senators  are  not,  ex  officio,  counsellors  indi- 
vidually; but  the  president  "may  convene  both  houses,  or  either  of  them."  {Mr.  Justice 
Baldwin,  A  General  View  of  the  Origin  and  Nature  of  the  Constitution  and  Government 
of  the  United  States,  1837,  p.  36.) 

It  is  believed  to  be  one  of  the  chief  merits  of  the  American  system  of  written  constitu- 
tional law,  that  all  the  powers  intrusted  to  government,  whether  State  or  national,  are 
divided  into  the  three  grand  departments,  the  executive,  the  legislative,  and  the  judicial. 
That  the  functions  appropriate  to  each  of  these  branches  of  government  shall  be  vested  in 
a  separate  body  of  public  servants,  and  that  the  perfection  of  the  system  requires  that  the 
lines  which  separate  and  divide  these  departments  shall  be  broadly  and  clearly  defined. 
It  is  also  essential  to  the  successful  working  of  this  system  that  the  persons  intrusted  with 
power  in  any  one  of  these  branches  shall  not  be  permitted  to  encroach  upon  the  powers 
confided  to  the  others,  but  that  each  shall  by  the  law  of  its  creation  be  limited  to  the  exer- 
cise of  the  powers  appropriate  to  its  own  department  and  no  other.  To  these  general 
propositions  there  are  in  the  Constitution  of  the  United  States  some  important  exceptions. 
One  of  these  is,  that  the  President  is  so  far  made  a  part  of  the  legislative  power,  that  his 
assent  is  required  to  the  enactment  of  all  statutes  and  resolutions  of  Congress. 

This,  however,  is  so  only  to  a  limited  extent,  for  a  bill  may  become  a  law  notwithstand- 
ing the  refusal  of  the  President  to  approve  it,  by  a  vote  of  two-thirds  of  each  House  of 
Congress. 

So,  also,  the  Senate  is  made  a  partaker  in  the  functions  of  appointing  officers  and  mak- 
ing treaties,  which  are  supposed  to  be  properly  executive,  by  requiring  its  consent  to  the 
appointment  of  such  officers  and  the  ratification  of  treaties.  The  Senate  also  exercises  the 
judicial  power  of  trying  impeachments,  and  the  House  of  preferring  articles  of  impeachment. 

In  the  main,  however,  that  instrument,  the  model  on  which  are  constructed  the  funda- 
mental laws  of  the  States,  has  blocked  out  with  singular  precision,  and  in  bold  lines,  in  its 
three  primary  articles,  the  allotment  of  power  to  the  executive,  the  legislative,  and  the 
judicial  departments  of  the  government.  It  also  remains  true,  as  a  general  rule,  that  the 
powers  confided  by  the  Constitution  to  one  of  these  departments  cannot  be  exercised  by 
another. 

It  may  be  said  that  these  are  truisms  which  need  no  repetition  here  to  give  them  force. 
But  while  the  experience  of  almost  a  century  has  in  general  shown  a  wise  and  commend- 
able forbearance  in  each  of  these  branches  from  encroachments  upon  the  others,  it  is  not 
to  be  denied  that  such  attempts  have  been  made,  and  it  is  believed  not  always  without  suc- 
cess. The  increase  in  the  number  of  States,  in  their  population  and  wealth,  and  in  the 
amount  of  power,  if  not  in  its  nature  to  be  exercised  by  the  Federal  government,  presents 
powerful  and  growing  temptations  to  those  to  whom  that  exercise  is  intrusted,  to  overstep 
the  just  boundaries  of  their  own  department,  and  enter  upon  the  domain  of  one  of  the 
others,  or  to  assume  powers  not  intrusted  to  either  of  them.  (Mr.  Justice  Miller  in  Kil- 
bourn  v.  Thompson,  103  United  States  Reports,  168,  190,  192,  decided  in  1880.) 

But  the  principle  of  definition  and  limitation  of  powers  harmonises  so  well  with  the 
federal  spirit  that  it  is  generally  carried  much  farther  than  is  dictated  by  the  mere  logic  of 
the  constitution.  Thus  the  authority  assigned  to  the  United  States  under  the  Constitution 
is  not  concentrated  in  any  single  official  or  body  of  officials.  The  President  has  definite 
rights,  upon  which  neither  Congress  nor  the  judicial  department  can  encroach.  {Albert 
Venn  Dicey,  Introduction  to  the  Study  of  the  Laiu  of  the  Constitution,  1885,  8th  edition, 
1915,  pp.  148-149-) 


CHAPTER  IX 

CREATION    OF    THE    EXECUTIVE 

It  was  not  by  chance  that  Mr.  Randolph's  resolutions  began  with  the 
legislative  department  and  it  need  occasion  no  surprise  that  the  question  of 
powers  to  be  granted  to  this  department  of  the  proposed  Government  was  the 
subject  of  prolonged  debate  and  the  grant  itself  the  result  of  concession  and 
compromise.  The  lack  of  power  on  the  part  of  Congress  to  raise  revenue,  to 
maintain  the  government  under  the  Articles  of  Confederation,  and  to  regulate 
commerce  with  foreign  nations  and  among  the  States  was  the  cause  of  the 
convention,  and  this  part  of  the  plan  would  have  been  discussed  and  decided, 
as  it  was,  if  Mr.  Randolph's  resolutions  had  ended  instead  of  beginning  with 
the  legislative  department.  But  the  fundamental  question  at  issue  was  the 
definition  of  power.  In  comparison,  the  exercise  of  this  power  by  an  executive 
and  indeed  even  the  interpretation  of  the  power  were  minor  matters.  Without 
the  grant  there  could  be  no  exercise  of  the  power,  there  could  be  no  interpreta- 
tion, there  could  be  no  Constitution. 

However  a  second  branch  of  the  proposed  government  was,  according  to 
the  theory  of  the  division  of  powers,  the  executive.  Mr.  Randolph's  proposi- 
tions contained  in  the  seventh  and  eighth  of  his  resolutions,  provide  respec- 
tively : 

7.  Resd.  that  a  National  Executive  be  instituted;  to  be  chosen  by  the  Na- 
tional Legislature  for  the  term  of  years,  to  receive  punctually  at  stated 
times,  a  fixed  compensation  for  the  services  rendered,  in  which  no  increase  or 
diminution  shall  be  made  so  as  to  affect  the  Magistracy,  existing  at  the  time 
of  increase  or  diminution,  and  to  be  ineligible  a  second  time;  and  that  besides 
a  general  authority  to  execute  the  national  laws,  it  ought  to  enjoy  the  Execu- 
tive rights  vested  in  Congress  by  the  Confederation. 

8.  Res4,  that  the  Executive  and  a  convenient  number  of  the  National 
Judiciary,  ought  to  compose  a  Council  of  revision  with  authority  to  examine 
every  act  of  the  National  Legislature  before  it  shall  operate,  &  every  act  of  a 
particular  Legislature  before  a  Negative  thereon  shall  be  final ;  and  that  the 
dissent  of  the  said  Council  shall  amount  to  a  rejection,  unless  the  Act  of  the 
National  Legislature  be  again  passed,  or  that  of  a  particular  Legislature  be 
again  negatived  by  of  the  members  of  each  branch.1 

There  appears  to  have  been  no  objection  on  the  part  of  any  member  to 

1  Documentary  History  of  the  Constitution,  Vol.  iii,  pp.  18-19.     Session  of  May  29th. 

194 


CREATION    OF   THE   EXECUTIVE  195 

the  institution  of  an  executive  department  which  should  possess  at  least  the 
rights  "  vested  in  Congress  by  the  Confederation."  A  difference  of  opinion 
existed,  however,  as  to  whether  the  executive  should  consist  of  one  person  or 
a  number;  as  to  the  period  during  which  the  executive  should  hold  office;  the 
eligibility  of  the  incumbent  to  reelection;  the  method  of  choice  and  the  powers 
which  the  executive  should  possess. 

It  would  seem  that  Mr.  Randolph,  who  stood  sponsor  for  the  resolutions 
which  bear  his  name,  although  the  authorship  thereof  is  popularly  accredited  to 
Mr.  Madison,  was  in  favor  of  a  plural  executive  representing  the  different  sec- 
tions of  the  Union.  The  New  Jersey  plan  laid  before  the  convention  on  June 
15th  specified  "a  federal  Executive  to  consist  of  persons."  1     The  Exe'cm've 

convention,  however,  decided,  and  wisely,  in  favor  of  a  single  executive. 

It  will  be  observed  that  in  each  plan  the  executive  was  to  be  elected  by  the 
national  legislature.  The  first  draft  of  the  Constitution  as  reported  on  August 
6th,  provided,  in  the  first  section  of  its  tenth  article  that,  "the  Executive 
Power  of  the  United  States  shall  be  vested  in  a  single  person.  His  stile  shall 
be  'The  President  of  the  United  States  of  America';  and  his  title  shall  be, 
'  His  Excellency.'  He  shall  be  elected  by  ballot  by  the  Legislature.  He  shall 
hold  his  office  during  the  term  of  seven  years ;  but  shall  not  be  elected  a  second 
time."  2 

Although  every  other  clause  of  the  section  was  modified,  the  convention 
stood  fast  by  the  single  executive,  as  the  great  desire  of  the  delegates  was  to 
maintain,  as  a  cardinal  principle  of  the  proposed  scheme  of  government,  a 
separation  of  powers,  and  therefore  to  make  the  president  independent  of  the 
other  departments  of  government.  It  was  understood  that  the  president  was 
to  be  an  elective  officer ;  and  as  far  as  known,  there  was  not  made  at  any  time 
a  proposition  for  an  hereditary  executive.  It  was  felt  by  some  members  that 
he  should  be  elected  for  a  fixed  number  of  years  and  be  ineligible  to  reelection. 
Those  favoring  his  election  by  the  national  legislature  were,  as  a  rule,  op- 
posed to  reelection  and  in  favor  of  a  longer  term  in  order  that  his  dependence 
upon  the  legislature  might  not  be  too  close  or  too  apparent.  Those  opposing 
the  choice  by  the  legislature  appear  to  have  favored  a  short  term  with  the  pos- 
sibility of  reelection.  It  is  thus  seen  that  these  questions  were  interrelated 
not  separate  and  distinct.  Without  pausing  to  trace  the  steps  by  which  an 
agreement  was  reached  upon  the  presidency,  it  will  suffice  to  say  that  the  term 
was  fixed  at  a  period  of  four  years,  subject  to  reelection.  There  is  no  provi-  Qffi™of 
sion  in  the  Constitution  preventing  a  president  from  being  reelected  for 
periods  of  four  years  throughout  his  natural  lifetime.  General  Washington's 
refusal  to  stand  a  third  time  set  a  precedent  followed  by  Messrs.  Jefferson  and 

1  Documentary  History,  Vol.  iii,  p.  126. 

2  Ibid.,  p.  453. 


196  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Jackson,  who  might  have  been  elected  for  a  third  term,  and  has  established  a 
IJestemal  custom  hitherto  unbroken.     Finally,  as  the  result  of  much  discussion,  and  of 

many  propositions  made  only  to  be  rejected,  it  was  agreed  that  the  president 
should  be  elected  neither  by  the  legislature,  by  the  Congress,  by  the  people,  nor 
by  the  States,  and  yet  that  he  should  be  elected  by  a  method  which  suggests  each 
of  these.  Thus,  a  number  of  persons  called  electors,  equal  to  the  number  of 
senators  and  representatives  to  which  each  State  was  entitled  in  Congress,  were 
to  be  appointed  in  such  manner  as  the  legislature  of  each  of  the  States  should 
determine.  The  electors  thus  chosen  were  to  meet  within  their  respective 
States,  and  to  vote  by  ballot  for  two  persons,  only  one  of  whom  could  be  a 
citizen  of  the  same  State  with  themselves.  The  person  having  the  greatest 
number  of  votes  was  to  be  president,  provided  he  received  a  majority  of 
the  whole  number  of  electors  appointed.  If  more  than  one  received  a 
majority  and  had  an  equal  number  of  votes,  the  House  of  Representatives 
would  choose  by  ballot  one  of  them  for  president.  If  no  person  received 
a  majority,  then  the  president  was  to  be  chosen  from  the  five  highest  on  the 
list.  In  such  a  case  the  House  of  Representatives  voted  by  States,  each 
of  which  was  to  possess  one  vote.  For  this  purpose  a  quorum  of  the 
House  was  to  consist  of  two-thirds  of  the  States,  and  a  majority  of  the 
States  was  necessary  for  a  choice.  In  any  event,  the  person  having  the  great- 
est number  of  votes  of  electors  was  to  be  vice  president,  and  if  there  remained 
two  with  equal  votes,  the  Senate  was,  by  ballot,  to  choose  one,  who  thereupon 
became  the  vice  president.     All  of  these  features  were  in  the  plan  agreed  to. 

It  is  apparent,  from  this  brief  account  of  the  method  ultimately  adopted, 
that  the  electors  could  be  chosen  by  popular  vote  within  a  State  if  the  legisla- 
ture thereof  cared  so  to  do;  or  the  legislature,  if  it  preferred,  might  itself 
appoint  them.  The  States  might  participate  directly  in  the  election  in  case 
no  one  voted  for  by  the  electors  had  received  a  majority  of  the  votes  cast. 
It  was  believed  by  the  framers  that  this  might  frequently  happen,  inuring  to 
the  advantage  of  the  smaller  States,  just  as  the  selection  by  election  would  inure 
to  the  advantage  of  the  larger  ones.  The  election  of  the  vice  president  under 
like  circumstances  would  inure  to  the  advantage  of  the  small  States  equally 
represented  by  two  senators  in  the  upper  house. 

The  members  of  the  convention  were  without  experience  in  this  matter, 
and  the  work  of  their  hands  was  faulty.  It  has  twice  been  amended,  and 
within  the  memory  of  men  still  living  its  application  gave  rise  to  a  disputed 
election  which  tested  the  forbearance  and  the  capacity  of  the  American  people 
for  self-government.  The  precedent  for  the  use  of  electors  chosen  in  this 
way  seems  to  have  been  taken  from  the  Constitution  of  the  State  of  Maryland, 
in  which  the  senators  were  chosen  by  persons  called  electors  chosen  from  each 
of  the  counties  of  the  State,  who,  meeting  in  the  city  of  Annapolis  on  a 


CREATION    OF   THE   EXECUTIVE  197 

specified  date,  elected  by  ballot  "  either  out  of  their  own  body,  or  the  people 
at  large,  fifteen  senators  (nine  of  whom  to  be  residents  on  the  western,  and 
six  to  be  residents  on  the  eastern  shore)  men  of  the  most  wisdom,  experience 
and  virtue.  .  .  ."  1 

The  great  duty  imposed  upon  the  president  appears  to  be  that  prescribed  oathofnts 
in  the  oath  or  affirmation  taken  before  entering  upon  the  execution  of  his  high  0ffice 
office,  that  he  will  to  the  best  of  his  ability  "  preserve,  protect  and  defend  the 
Constitution  of  the  United  States."  That  he  may  be  held  to  strict  account- 
ability both  for  the  performance  of  his  duties  and  the  exercise  of  his  rights, 
both  he  and  the  vice  president,  who  succeeds  him  in  case  of  death  or  disability, 
are,  to  quote  the  exact  language  of  the  fourth  section  of  the  second  article  of 
the  Constitution,  to  "  be  removed  from  Office  on  Impeachment  for,  and  con- 
viction of,  Treason,  Bribery  or  other  high  Crimes  and  Misdemeanors." 

It  has  often  been  stated  that  the  president  possesses  greater  power  than  His 
any  constitutional  monarch,  in  that  he  is  ex  officio  commander  in  chief  of  the  Powers 
army  and  navy  in  any  event,  and  of  the  militia  of  the  several  States  when 
called  into  the  actual  service  of  the  United  States.  This  is  indeed  a  great 
power;  but  it  is  one  with  which  the  framers  of  the  Constitution  were  familiar, 
and  which  they  were  therefore  willing  to  entrust  to  an  executive  officer  of 
their  own  choice,  inasmuch  as  the  several  States  had  entrusted  such  powers  to 
their  chief  executives,  termed  indifferently  president  or  governor,  and  desig- 
nated indifferently  captain-general  or  commander-in-chief.  The  framers  of 
the  Constitution  foresaw  that  it  would  be  but  natural  that  he  would  request 
the  opinion  of  the  principal  officers  of  the  various  executive  departments  not 
created  by  but  contemplated  in  the  Constitution.  It  was  neither  unnatural  that 
he  should  be  authorized  to  grant  reprieves  and  pardons  for  offenses  against 
the  United  States ;  nor  that  he  should  be  denied  power,  in  cases  of  impeachment, 
lest  he  might  be  tempted  to  exercise  it  in  behalf  of  one  whom  he  himself  had 
appointed  and  in  whose  offense  he  might  have  participated. 

The  convention  was  much  disturbed  as  to  the  appointing  power  and  as  to 
its  location.  This  was  to  be  expected,  both  from  the  difficulty  inherent  in  the 
subject  and  from  the  lack  of  any  uniform  rule  in  or  experience  had  with  the 
constitutions  of  the  States,  where  various  methods  had  been  tried  without  the 
development  of  any  one  which  commended  itself  as  perfect  or  markedly 
superior  to  the  others. 

That  the  president  should  negotiate  treaties  in  the  first  instance  was  seen  Treatiw 
to  be  inevitable  from  the  outset;  that  he  should  conclude  them  and  bind  the 
States  and  their  citizens  and  inhabitants  without  check  or  cooperation  on  the 
part  of  the  legislative  department  was  felt  to  be  far  from  desirable.     The  solu- 
tion in  this  case,  however,  was  a  very  happy  one,  in  that  the  president  represents 

1  The  Constitutions  of  the  Several  Independent  States,  1781,  p.  128,  Article  15. 


198  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

the  States  —  and  only  States,  not  the  citizens  or  inhabitants  thereof,  could 
conclude  treaties.  Thus  it  seemed  necessary  to  the  members  of  the  convention 
that  the  legislative  branch  should  participate  in  the  exercise  of  this  power,  inas- 
much as  treaties  very  frequently  if  not  generally  require  legislation  to  carry 
them  into  effect.  The  cooperation  of  both  branches  of  the  legislature  might 
therefore  have  been  required,  the  more  especially  so,  as  by  the  great  compromise, 
revenue  bills  could  only  originate  in  the  House  subject  to  amendment  or  modi- 
fication in  the  Senate.  The  lower  house  therefore  could  have  claimed  a  hand 
in  the  transaction,  as  it  might  be  as  unwilling  to  pass  an  appropriation  to  carry 
a  treaty  into  effect,  although  approved  or  modified  by  the  Senate,  as  if  the  pres- 
ident alone,  without  the  concurrence  of  the  Senate,  had  negotiated  the  treaty.1 
There  were  other  views  of  this  question  which  weighed  heavily  with  the 
members.  The  Senate,  as  expected,  would  always  be  a  small  body  in  com- 
parison with  the  House  of  Representatives,  and  matters  of  great  delicacy, 
such  as  foreign  affairs,  could,  it  was  felt,  be  best  determined  in  a  body  of 
restricted  membership,  especially  as  it  was  to  possess  advisory  as  well  as  ratify- 
ing qualities.  Again,  the  States  were  expressly  renouncing  the  right  to  con- 
clude treaties  and  conventions  with  foreign  powers,  which,  as  free,  sovereign 
and  independent  States,  they  had  possessed.  By  a  happy  device  the  president, 
the  general  agent  of  the  States,  now  conducts  the  negotiations  with  foreign 
powers,  and  the  Senate,  as  the  representative  of  the  States,  acts  as  an  advisory 
body  and  as  a  check  upon  his  action.     That  the  advisability  of  the  transaction 

1 "  Mr.  Madison  observed  that  the  Senate  represented  the  States  alone,  and  that  for 
this  as  well  as  other  obvious  reasons  it  was  proper  that  the  President  should  be  an  agent 
in  Treaties."    Documentary  History,  Vol.  Hi,  p.  604.     Session  of  August  23d. 

The  following  extracts,  which  are  reprinted  from  Sydney  George  Fisher's  Evolution 
of  tlw  Constitution,  1897,  pp.  306-7,  indicate  the  successive  steps  that  led  to  the  treaty- 
making  plan  finally  adopted  in  the  Constitution: 

"  That  the  president-general,  with  the  advice  of  the  grand  council,  hold  or  direct  all 
Indian  treaties  in  which  the  general  interest  or  welfare  of  the  colonies  may  be  concerned." 
(Franklin's  Plan  of  1754.) 

"  That  the  president,  by  the  advice  of  the  council,  may  hold  and  manage  all  Indian 
treaties  in  which  the  general  interest  or  welfare  of  the  colonies  may  be  concerned." 
(Hutchinson's   Plan,   1754.) 

"  That  the  power  and  duty  of  congress  shall  extend  to  entering  into  alliances."  (Frank- 
lin's Articles  of  Confederation,  1775.) 

"  That  the  president  and  commander-in-chief  shall  have  no  power  to  make  war  or 
peace,  or  enter  into  any  final  treaty,  without  the  consent  of  the  general  assembly  and 
legislative   council."     (South   Carolina   Constitution   of    1776.) 

"  The  United  States,  in  congress  assembled,  shall  have  the  sole  and  exclusive  right 
and  power  of  entering  into  treaties  and  alliances,  provided  that  no  treaty  of  commerce 
shall  be  made  whereby  the  legislative  power  of  the  respective  states  shall  be  restrained 
from  imposing  such  imposts  and  duties  on  foreigners  as  their  own  people  are  subjected  to, 
or  from  prohibiting  the  exportation  or  importation  of  any  species  of  goods  or  commodities 
whatsoever."     (Articles   of   Confederation,   1778.) 

"  The  congress  shall  have  the  sole  power  of  entering  into  and  concluding  treaties  and 
alliances   with   foreign  powers."     (Drayton's   Articles  of   Confederation,   1778.) 

"The  senate  shall  have  the  sole  and  exclusive  power  to  make  treaties."  (Pincknev's 
Plan,  1787.) 

"He  [the  President]  shall  have  power,  by  and  with  the  advice  and  consent  of  the 
senate,  to  make  treaties,  provided  two-thirds  of  the  senators  present  concur."  (The 
Constitution.) 


CREATION    OF   THE   EXECUTIVE  199 

be  beyond  question  and  that  mere  majorities  should  not  control,  the  approval 
of  two-thirds  of  the  senators  present  was  required  for  approval  of  the  treaty 
or  convention  submitted. 

The  president,  however,  does  not  ordinarily  negotiate  directly  with  foreign 
countries,  but  indirectly  by  means  of  officers  of  the  United  States.  The  ques- 
tion naturally  and  inevitably  arose  as  to  the  appointment  of  officers  both  to 
aid  the  president  and  to  carry  out  the  provisions  of  the  Constitution  in  this 
and  in  other  respects.  At  one  time  it  was  proposed  that  they  be  chosen  by  the 
Senate;  but  ultimately  the  convention,  while  reserving  the  right  on  the  part  of 
the  legislature  to  determine  the  mode  of  appointment,  other  than  those 
thought  to  be  essential  and  therefore  specified  in  the  Constitution,  vested  their 
appointment  in  the  president  in  the  first  instance,  subject  to  confirmation  in 
the  Senate,  as  it  seemed  appropriate  that  persons  to  act  as  officers  of  the 
United  States  should  be  passed  upon  and  confirmed  by  the  branch  of  the  gov- 
ernment representing  the  States.  The  convention,  in  vesting  the  appoint- 
ment of  officers  in  the  president  subject  to  confirmation  by  the  Senate,  seems 
to  have  had  in  mind  the  practice  of  Massachusetts,  a  practice  which  was  specifi- 
cally called  to  its  attention  by  Mr.  Gorham,  with  the  result  that  the  power  was 
happily  at  hand  and  in  the  following  manner : 

He  shall  nominate,  and  by  and  with  the  Advice  and  Consent  of  the  Senate, 
shall  appoint  Ambassadors,  other  public  Ministers  and  Consuls,  Judges  of 
the  supreme  Court,  and  all  other  Officers  of  the  United  States,  whose  Appoint- 
ments are  not  herein  otherwise  provided  for,  and  which  shall  be  established 
by  Law :  but  the  Congress  may  by  Law  vest  the  Appointment  of  such  inferior 
Officers,  as  they  think  proper,  in  the  President  alone,  in  the  Courts  of  Law, 
or  in  the  Heads  of  Departments.1 

It  was  natural,  under  these  circumstances,  that  he  should  be  empowered  to 
commission  all  officers  of  the  United  States,  that  he  should  receive  ambassa- 
dors and  other  public  ministers,  inasmuch  as  he  himself  was  charged  with  the 
conduct  of  foreign  relations;  that  he  should  from  time  to  time  give  to  the 
Congress  "  information  of  the  state  of  the  Union,  and  recommend  to  their 
consideration  such  measures  as  he  shall  judge  necessary  and  expedient;  "  and, 
in  view  of  the  experience  of  the  colonies  and  the  provisions  to  be  found  in  the 
constitutions  of  the  States,  that  he  should  "  on  extraordinary  occasions,  con- 
vene both  houses,  or  either  of  them,  and  in  case  of  disagreement  between  them, 
with  respect  to  the  time  of  adjournment,  he  may  adjourn  them  to  such  time 
as  he  shall  think  proper."  As  executive  of  the  United  States  it  was  highly 
desirable  that  he  should,  in  the  language  of  the  Constitution,  "  take  care  that 
the  laws  be  faithfully  executed." 

If  this  were  all,  the  eighth  of  Mr.  Randolph's  resolutions  would  have  been 

1  Article  II,  Section  2,  of  the  Constitution. 


200  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

overlooked,  although  the  president  would  indeed  enjoy  a  general  authority  to 
execute  the  national  laws,  "  enjoy  the  executive  rights  vested  in  Congress  by 
the  Confederation,"  in  addition  to  others  which  could  not  well  exist  because 
of  a  defect  of  power  in  the  Congress  under  the  Articles  of  Confederation. 
And  it  may  perhaps  be  said  that  the  eighth  resolution  was  one  of  the  most 
difficult  which  confronted  the  convention,  and  one  which,  at  the  same  time, 
was  not  the  least  successfully  met  and  solved, 
uponthe  The  necessity  was  felt  on  all  sides  to  have  some  check  upon  the  legislative, 

just  as  there  was  a  check  upon  the  executive.  Wise  laws  and  unwise  statutes 
could  be  passed  by  the  national  legislature  as  well  as  by  the  legislatures  of  the 
States,  opposed  to  the  Constitution.  This  the  eighth  and  fourteenth  of  Mr. 
Randolph's  resolutions  (which  can  be  called  the  large  State  plan),  as  well  as 
the  sixth  of  Mr.  Patterson's  resolutions  (which  may  be  called  the  small  State 
plan),  sought  to  obviate.  The  colonies  had  had  experience  in  both  these 
matters.  The  King  in  Council  had  passed  upon  acts  of  the  colonies  in  some 
cases  before  they  became  law ;  in  other  cases  rejected  them  within  a  prescribed 
period,  and  set  aside  decisions  of  courts  of  justice  based  upon  alleged  laws 
of  the  colonies  in  excess  of  the  grant  of  power  contained  in  the  charter,  or 
in  instructions  from  the  Crown.  This  power  of  the  King  in  Council  must 
on  the  whole  have  been  reasonably  exercised,  inasmuch  as  the  members  of 
the  convention  frequently  referred  to  it  without  criticism  or  disapproval. 
Indeed  the  local  statesmen  of  the  day  retained  this  right  or  prerogative  in 
various  forms  in  the  constitutions  of  the  several  States  when  they  became 
independent  political  communities.  Projects  of  the  large  and  the  small  States 
containing  provisions  to  the  same  effect  can  be  taken  as  an  opinion  amount- 
ing to  a  conviction  that  some  expedient  or  device  of  this  kind  was  felt  to  be 
essential  to  the  execution  of  the  proposed  Constitution,  just  as  it  was  to  the 
constitutions  of  the  States  and  to  the  colonies  under  charter  or  governed 
directly  by  instructions  from  the  Crown.  The  idea  was  an  especial  favorite 
with  Mr.  Madison  and  those  of  his  school  of  thought.  The  eighth  of  Mr. 
Randolph's  resolutions  could  be  safely  ascribed  to  Mr.  Madison  on  the  evi- 
dence of  authorship  contained  in  his  correspondence  with  Mr.  Randolph  and 
with  General  Washington  in  the  months  preceding  the  Convention.1  The 
principle  was  sound  but  the  method  was  faulty. 

Admitting  the  necessity  of  some  check  upon  the  legislature,  there  were 
strong  reasons  for  lodging  it  in  the  hands  of  the  executive.  This  would  in- 
deed be  cooperation  with  the  legislature  in  the  framing  of  laws,  violating  to  a 
certain  degree  the  separation  of  functions  which  had  been  adopted  as  a  funda- 
mental principle  of  the  proposed  Constitution.     It  would  be  a  further  viola- 

1  See  letter  to  Edmund  Randolph,  April  8,  1787,  The  Writings  of  James  Madison,  Hunt 
ed.,  Vol.  ii,  pp.  336-340;  and  to  George  Washington,  April  16,  1787,  Ibid.,  pp.  344-352. 


CREATION    OF   THE   EXECUTIVE  201 

tion,  and  indeed  a  very  serious  one,  if  the  judiciary,  charged  with  the  interpre- 
tation of  the  laws,  should  be  required  to  participate  with  the  legislature  and 
executive  in  their  making.  Therefore,  after  much  discussion,  debate  and 
heart-burning  on  the  part  of  Messrs.  Madison  and  Wilson,  the  president  was 
given  a  veto  upon  the  proposed  legislation  of  Congress,  separate  and  distinct 
from  the  judiciary.  Article  3  of  the  Constitution  of  the  State  of  New  York, 
eliminating  therefrom  the  cooperation  of  the  judiciary,  had  furnished  a  pre- 
cedent which  Massachusetts  adopted,  freed  from  the  cooperation  of  the  judges, 
in  Section  I,  Article  II  of  the  Constitution  of  that  commonwealth.  The  New 
York  expedient  was  to  have  even  a  larger  influence  and  application.  Substi- 
tuting the  president  for  the  council,  the  Federal  Convention  literally  took  this 
provision  from  the  following  passage  of  Article  3  of  the  Constitution  of  the 
State  of  New  York  of  April  20,  1777: 

And  that  all  bills,  which  have  passed  the  senate  and  assembly,  shall,  before 
they  become  laws,  be  presented  to  the  said  council  for  their  revisal  and  con- 
sideration;  and  if  upon  such  revision  and  consideration,  it  should  appear 
improper  to  the  said  council,  or  a  majority  of  them,  that  the  said  bill  should 
become  a  law  of  this  state,  that  they  return  the  same,  together  with  their 
objections  thereto  in  writing,  to  the  senate  or  house  of  assembly,  in  whichso- 
ever the  same  shall  have  originated,  who  shall  enter  the  objections  sent  down 
by  the  council,  at  large,  in  their  minutes,  and  proceed  to  reconsider  the  said 
bill.  But  if  after  such  reconsideration,  two-thirds  of  the  said  senate  or 
house  of  assembly,  shall,  notwithstanding  the  said  objections,  agree  to  pass 
the  same,  it  shall,  together  with  the  objections,  be  sent  to  the  other  branch 
of  the  legislature,  where  it  shall  also  be  reconsidered,  and  if  approved  by  two- 
thirds  of  the  members  present,  shall  be  a  law. 

And  in  order  to  prevent  any  unnecessary  delays,  be  it  further  ordained, 
that  if  any  bill  shall  not  be  returned  by  the  council  within  ten  days  after 
it  shall  have  been  presented,  the  same  shall  be  a  law,  unless  the  legislature 
shall,  by  their  adjournment,  render  a  return  of  the  said  bill  within  ten  days 
impracticable ;  in  which  case  the  bill  shall  be  returned  on  the  first  day  of 
the  meeting  of  the  legislature,  after  the  expiration  of  the  said  ten  days.1 

So  much  for  the  act  of  Congress,  which  the  president  may  deem  unwise  or 
inconsistent  with  the  terms  of  the  Constitution. 

A  more  delicate  and  difficult  question  arose  in  the  case  of  an  act  of  a 
State  legislature,  which  might  be  unwise  and,  in  addition,  inconsistent 
with  the  terms  of  the  Constitution  or  an  act  of  Congress  or  a  treaty  of  the 
United  States.  The  view  which  ultimately  prevailed  was  stated  in  the  session 
of  August  23,  1787,  by  Mr.  Sherman,  who  thought  a  negative  unnecessary, 
"  the  laws  of  the  General  Government  being  Supreme  &  paramount  to  the 
State  laws  according  to  the  plan  as  it  now  stands."  2  Mr.  Wilson,  as  set  as 
Mr.  Madison  upon  the  council  of  revision  as  a  check  upon  the  States,  is 

1  The  Constitutions  of  the  Several  Independent  States,  1781 ,  pp.  63-4. 

2  Documentary  History,  Vol.  iii,  pp.  001-2. 


202 


THE  united  states:  a  study  in  international  organization 


Executive    and 
Judicial   Vetoes 


Laws 
Operate 
c  n 
Individuals 


reported  by  the  latter  to  the  effect  that  he  "  considered  this  as  the  key-stone 
wanted  to  compleat  the  wide  arch  of  Government  we  are  raising.  The  power 
of  self-defence  had  been  urged  as  necessary  for  the  State  Governments  — 
It  was  equally  necessary  for  the  General  Government.  The  firmness  of 
Judges  is  not  of  itself  sufficient —  Something  further  is  requisite —  It  will  be 
better  to  prevent  the  passage  of  an  improper  law,  than  to  declare  it  void  when 
passed."  '  To  which  Mr.  Rutledge  of  South  Carolina  replied,  apparently  with 
some  heat,  for  he  was  not  of  an  uncholeric  disposition,  that  "If  nothing  else, 
this  alone  would  damn  and  ought  to  damn  the  Constitution.  Will  any  State 
ever  agree  to  be  bound  hand  &  foot  in  this  manner.  It  is  worse  than  making 
mere  corporations  of  them  whose  bye  laws  would  not  be  subject  to  this 
shackle." 

The  way  out  was  contained  in  the  sixth  of  Mr.  Patterson's  resolutions,  pro- 
viding "  that  all  Acts  of  the  U.  States  in  Cong8.,  .  .  .  and  all  Treaties  made 
&  ratified  under  the  authority  of  the  U.  States  shall  be  the  supreme  law  of 
the  respective  States  so  far  forth  as  those  Acts  or  Treaties  shall  relate  to  the 
said  States  or  their  Citizens,  and  that  the  Judiciary  of  the  several  States  shall 
be  bound  thereby  in  their  decisions,  any  thing  in  the  respective  laws  of  the 
Individual  States  to  the  contrary  notwithstanding."  2  With  slight  modifica- 
tions this  clause  became  Article  VI  of  the  perfected  Constitution,  leaving  with 
the  president  what  may  be  called  an  executive  veto  of  the  acts  of  Congress  and 
with  the  judiciary  a  judicial  veto  of  the  acts  of  the  Congress  and  of  the  States 
inconsistent  with  the  Constitution  of  the  Union,  whether  embodied  in  the  State 
constitutions  or  in  their  ordinary  laws. 

The  President,  it  will  be  recalled,  is  charged  with  the  execution  of  the  laws 
of  the  United  States,  and  it  does  not  require  argument  that  these  should  be 
executed,  otherwise  their  enactment  would  be  worse  than  futile.  It  is,  how- 
ever, to  be  borne  in  mind  that  the  government  created  by  the  Constitution  was 
one  without  precedent,  and  that  a  principle  was  fortunately  found  which  was 
meant  to  prevent  the  impracticable  method  of  execution  by  force  against  a 
State,  by  having  the  laws  operate  directly  on  the  individual,  by  virtue  whereof 
a  private  citizen  violating  the  law  could  be  arrested  and  punished,  and  an 
official,  national  or  State,  violating  the  law  could  be  restrained  under  a  govern- 
ment of  laws,  not  of  men.  Indeed,  Mr.  Madison  based  the  distinction  between 
a  national  and  a  federal  government  on  the  fact  that  the  former  operated  upon 
individuals,  whereas  the  latter  operated  upon  the  States,  and  although  this 
distinction  did  not  appear  clearly  in  the  text  of  Mr.  Randolph's  resolutions,  it 
may  well  have  been  in  the  minds  of  the  Virginian  members  who  stood  sponsor 
for  them 


1  Documentary  History,  Vol.  iii,  p.  602. 

2  Ibid.,  pp.  127-8. 


CREATION    OF   THE   EXECUTIVE  203 

In  the  plan  of  the  Virginian  delegation  which  Mr.  Randolph  laid  before 
the  convention  on  May  29th,  the  last  clause  of  the  sixth  resolution  authorized 
the  national  legislature  "  to  call  forth  the  force  of  the  Union  ag8'.  any  member 
of  the'Union  failing  to  fulfill  its  duty  under  the  articles  thereof,"  *  a  proposi- 
tionlikewise  contained  in  the  New  Jersey  plan,  introduced  on  June  15th  by 
William  Patterson  of  that  State,  authorizing  the  federal  government  "  to  call 
forth  ye  power  of  the  Confederated  States,  or  so  much  thereof  as  may  be 
necessary  to  enforce  and  compel  an  obedience  to  such  Acts,  or  an  Observance 
of  such  Treaties."  2 

On  the  30th  of  May,  that  is  to  say  the  very  next  day  after  Mr.  Randolph's 
resolutions  were  introduced,  Mr.  Mason  of  Virginia  observed,  as  reported  by 
Mr.  Madison,  "  that  the  present  confederation  was  not  only  deficient  in  not 
providing  for  coercion  &  punishment  ag5'.  delinquent  States ;  but  argued  very 
cogently  that  punishment  could  not  in  the  nature  of  things  be  executed  on  the 
States  collectively,  and  therefore  that  such  a  Gov',  was  necessary  as  could 
directly  operate  on  individuals,  and  would  punish  those  only  whose  guilt  re- 
quired it."  3 

A  very  little  experience  of  the  temper  of  the  Convention  convinced  Mr.   TheUse 
Madison  of   the  impracticability  of  this  provision,   although  he  himself   is  Against6 
credited  with  the  authorship  of  the  Virginian  plan,  so  that  on  May  31st,  but 
two  days  after  the  introduction  of  the  resolution,  he  changed  his  mind,  as 
appears  from  the  following  extract  from  the  debates: 

The  last  clause  of  Resolution  6  authorizing  an  exertion  of  the  force  of 
the  whole  ag51.  a  delinquent  State  came  next  into  consideration. 

Mr.  Madison  observed  that  the  more  he  reflected  on  the  use  of  force, 
the  more  he  doubted  the  practicability,  the  justice  and  efficacy  of  it  when 
applied  to  people  collectively  and  not  individually, —  a  Union  of  the  States 
containing  such  an  ingredient  seemed  to  provide  for  its  own  destruction. 
The  use  of  force  ag81.  a  State,  would  look  more  like  a  declaration  of  war, 
than  an  infliction  of  punishment,  and  would  probably  be  considered  by  the 
party  attacked  as  a  dissolution  of  all  previous  compacts  by  which  it  might 
be  bound.  He  hoped  that  such  a  system  would  be  framed  as  might  render 
this  recourse  unnecessary,  and  moved  that  the  clause  be  postponed."  4 

Mr.  Madison  informs  us  that  "  this  motion  was  agreed  to  nem.  con."  It 
does  not  figure  in  the  Constitution  for  the  reasons  disclosed  and  set  forth  in 
the  debates. 

A  few  days  later,  to  be  specific  on  June  8th,  Mr.  Madison  recurred  to  the 
subject  and  confirmed  his  recantation  of  the  use  of  force  against  a  State. 
Thus : 

1  Documentary  History,  Vol.  iii,  p.  18. 

2  Ibid.,  p.  128. 
» Ibid.,  p.  22. 

*  Ibid.,  pp.  33-4. 


204  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL    ORGANIZATION 

Could  the  national  resources,  if  exerted  to  the  utmost  enforce  a  national 
decree  agst.  Mass'3,  abetted  perhaps  by  several  of  her  neighbours?  It  wd. 
not  be  possible.  A  small  proportion  of  the  Community  in  a  compact  situa- 
tion, acting  on  the  defensive,  and  at  one  of  its  extremities  might  at  any  time 
bid  defiance  to  the  National  authority.  Any  Gov1,  for  the  U.  States  formed 
on  the  supposed  practicability  of  using  force  ag".  the  unconstitutional  pro- 
ceedings of  the  States,  wd.  prove  as  visionary  &  fallacious  as  the  Gov1, 
of  Cong5."  » 

The  views  thus  expressed  by  Mr.  Madison  survived  the  convention  in 
which  they  were  formed  and  stated,  as  appears  from  the  following  extract 
from  a  letter  dated  October  24,  1787,  written  after  its  adjournment  to  his 
friend  Thomas  Jefferson : 

A  voluntary  observance  of  the  Federal  law  by  all  the  members  could 
never  be  hoped  for.  A  compulsive  one  could  evidently  never  be  reduced 
to  practice,  and  if  it  could,  involved  equal  calamities  to  the  innocent  &  the 
guilty,  the  necessity  of  a  military  force  both  obnoxious  &  dangerous,  and  in 
general  a  scene  resembling  much  more  a  civil  war  than  the  administration 
of  a  regular  Government. 

Hence  was  embraced  the  alternative  of  a  Government  which  instead  of 
operating,  on  the  States,  should  operate  without  their  intervention  on  the 
individuals  composing  them ;  and  hence  the  change  in  the  principle  and 
proportion  of  representation.2 

So  much  for  the  Father  of  the  Constitution.  Next,  as  to  its  classic  ex- 
pounder. In  introducing  on  June  18th  his  plan  of  a  national  and  highly 
centralized  form  of  government,  Alexander  Hamilton  enumerated  "  the  great 
and  essential  principles  necessary  for  the  support  of  Government."  Among 
these  "  great  and  essential  principles  "  he  mentioned  force,  of  which  he  said : 

Force  by  which  may  be  understood  a  cocrtion  of  laws  or  coertion  of  arms. 
Congs.  have  not  the  former  except  in  few  cases.  In  particular  States,  this 
coercion  is  nearly  sufficient ;  tho'  he  held  it  in  most  cases,  not  entirely  so.  A 
certain  portion  of  military  force  is  absolutely  necessary  in  large  communities. 
Massts.  is  now  feeling  this  necessity  &  making  provision  for  it.  But  how 
can  this  force  be  exerted  on  the  States  collectively.  It  is  impossible.  It 
amounts  to  a  war  between  the  parties.  Foreign  powers  also  will  not  be 
idle  spectators.  They  will  interpose,  the  confusion  will  increase,  and  a 
dissolution  of  the  Union  ensue.3 

Colonel  Hamilton,  as  in  the  case  of  Mr.  Madison,  clung  to  the  views  which 
he  had  expressed  in  the  convention,  and  expressed  them  with  peculiar  and 
convincing  force  in  The  Federalist,  written  to  justify  the  Constitution,  which 
is,  as  is  well  known,  the  joint  product  of  the  minds  and  hands  of  Messrs.  Ham- 

1  Documentary    History,   Vol.    iii,    p.    89. 

-  II  ritiiu/s  of  Madison,  Hunt  ed..  Vol.  v,  p.  19. 

3 Documentary  History,  Vol.  iii,  p.  141. 


CREATION    OF   THE   EXECUTIVE  205 

ilton,  Madison  and  Jay.     In  the  following  passage  from  The  Federalist,  the 
Colonel  pays  his  respects  to  force: 

Whoever  considers  the  populousness  and  strength  of  several  of  these 
states  singly  at  the  present  juncture,  and  looks  forward  to  what  they  will 
become,  even  at  the  distance  of  half  a  century,  will  at  once  dismiss  as  idle 
and  visionary  any  scheme,  which  aims  at  regulating  their  movements  by 
laws,  to  operate  upon  them  in  their  collective  capacities,  and  to  be  executed 
by  a  coercion  applicable  to  them  in  the  same  capacities.  A  project  of  this 
kind  is  little  less  romantic  than  the  monster-taming  spirit,  attributed  to  the 
fabulous  heroes  and  demi-gods  of  antiquity. 

Even  in  those  confederacies  which  have  been  composed  by  members 
smaller  than  many  of  our  counties,  the  principle  of  legislation  for  sovereign 
states,  supported  by  military  coercion,  has  never  been  found  effectual.  It 
has  rarely  been  attempted  to  be  employed,  but  against  the  weaker  members ; 
and  in  most  instances  attempts  to  coerce  the  refractory  and  disobedient, 
have  been  the  signals  of  bloody  wars ;  in  which  one  half  of  the  confederacy 
has  displayed  its  banners  against  the  other.1 

And  on  a  third  occasion,  when  converting  to  the  proposed  Constitution  a 
hostile  majority  of  the  New  York  Convention,  by  force  of  argument,  not  by 
force  of  arms,  Alexander  Hamilton  restated  his  views  on  this  interesting  sub- 
ject.    In  the  first  place,  he  declared  it  impossible  to  coerce  States.     Thus : 

If  you  make  requisitions,  and  they  are  not  complied  with,  what  is  to  be 
done?  It  has  been  observed,  to  coerce  the  states  is  one  of  the  maddest 
projects  that  was  ever  devised.  A  failure  of  compliance  will  never  be 
confined  to  a  single  state.  This  being  the  case,  can  we  suppose  it  wise 
to  hazard  a  civil  war?  2 

In  the  next  place,  he  expressed  the  opinion  that  the  States  themselves  would 
not  agree  to  coerce  others.     Thus : 

But  can  we  believe  that  one  state  will  ever  suffer  itself  to  be  used  as  an 
instrument  of  coercion?     The  thing  is  a  dream;  it  is  impossible.3 

To  the  same  effect  is  the  language  of  George  Mason,  the  bitterest  opponent 
of  the  Constitution,  as  Messrs.  Madison  and  Hamilton  were  its  strongest  ad- 
vocates. On  the  matter  of  force,  the  opponents  and  the  advocates  agreed. 
Thus,  Mr.  Mason  said  on  June  20th : 

It  was  acknowledged  by  Mr.  Patterson  that  his  plan  could  not  be  enforced 
without  military  coertion.  Does  he  consider  the  force  of  this  concession. 
The  most  jarring  elements  of  nature ;  fire  &  water  themselves  are  not  more 
incompatible  tha[n]  such  a  mixture. of  civil  liberty  and  military  execution. 
Will  the  militia  march  from  one  State  to  another,  in  order  to  collect  the 
arrears  of  taxes  from  the  delinquent  members  of  the  Republic?     Will  they 

i  The  Federalist.  1802,  Vol.  i,  p.  102.     Paper,  No.  xvi. 

2  Jonathan  Elliot,  Debates  in  the  Several  State  Conventions,  1836,  Vol.  ii,  pp.  232-3. 

s  Ibid.,  p.  233. 


206  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

maintain  an  army  for  this  purpose?  Will  not  the  citizens  of  the  invaded 
State  assist  one  another  till  they  rise  as  one  Man,  and  shake  off  the  Union 
altogether?  Rebellion  is  the  only  case  in  which  the  military  force  of  the 
State  can  be  properly  exerted  ag5'.  its  Citizens.1 

Finally,  lest  the  views  of  the  statesmen  of  the  Revolution,  the  founders  of 
the  Republic,  and  the  framers  of  the  Constitution,  become  wearisome,  but  one 
further  quotation  is  made.  In  advocating  the  ratification  of  the  Constitution 
bv  the  Connecticut  Convention,  Oliver  Ellsworth,  with  that  fine  poise  and 
balance  of  mind  characteristic  of  the  senator  and  of  the  Chief  Justice  of  the 
Supreme  Court  of  the  United  States,  pointed  out  that  nothing  would  prevent 
the  States  from  falling  out  if  they  so  desired,  saying  on  this  point : 

If  the  United  States  and  the  individual  states  will  quarrel,  if  they  want 
to  fight,  they  may  do  it,  and  no  frame  of  government  can  possibly  prevent  it.2 

In  advocating  the  need  of  a  coercive  principle,  he  added : 

We  all  see  and  feel  this  necessity.  The  only  question  is,  Shall  it  be  a 
coercion  of  law,  or  a  coercion  of  arms?  There  is  no  other  possible  alterna- 
tive. Where  will  those  who  oppose  a  coercion  of  law  come  out?  Where 
will  they  end?  A  necessary  consequence  of  their  principles  is  a  war  of  the 
states  one  against  the  other.  I  am  for  coercion  by  law  —  that  coercion 
which  acts  only  upon  delinquent  individuals.  This  Constitution  does  not 
attempt  to  coerce  sovereign  bodies,  states,  in  their  political  capacity.  No 
coercion  is  applicable  to  such  bodies,  but  that  of  an  armed  force.  If  we 
should  attempt  to  execute  the  laws  of  the  Union  by  sending  an  armed  force 
against  a  delinquent  state,  it  would  involve  the  good  and  bad,  the  innocent 
and  guilty,  in  the  same  calamity.3 

It  was  foreseen  that  force  might  be  necessary  to  execute  the  laws  of  the 
Union,  and  therefore  Congress  was  specifically  empowered  by  a  clause  of  the 
eighth  section  of  the  first  article  "  to  provide  for  calling  forth  the  militia  to 
execute  the  laws  of  the  Union,  suppress  insurrections  and  repel  invasions." 
But  force  is  to  be  used,  in  accordance  with  the  views  previously  set  forth, 
against  individuals,  whether  they  act  singly  or  in  small  groups,  as  a  mob  or  in 
organized  masses  as  insurgents.  The  individual,  not  the  State,  suffers;  the 
individual,  not  the  State,  is  coerced.  At  least  this  seems  to  have  been  the  view 
of  the  framers  of  the  Constitution  and  it  has  been  the  practice  of  the  govern- 
ment of  the  more  perfect  Union  of  the  North  American  States.  In  the  session 
of  the  Federal  Convention  of  July  1-4,  1787,  Mr.  Madison,  adverting  to  this 
peculiarity  of  the  proposed  government  for  the  union  of  the  States,  "  called 
for  a  single  instance  in  which  the  Gen1.  Gov1,  was  not  to  operate  on  the  people 
individually,"  and  continued,  without  an  answer  having  been  interposed  to  his 


1  Documentary  Historv.  Vol.  iii,  pp.  171-2. 
=  Elliot,  Debates,  Vol.'ii,  p.  196. 
3  Ibid.,  p.  197. 


CREATION    OF   THE   EXECUTIVE  207 

question,  "  The  practicability  of  making  laws,  with  coercive  sanctions,  for 
the  States  as  political  bodies  has  been  exploded  on  all  hands."  * 

1  Documentary  History,  Vol.  iii,  p.  340. 


X 

THE  FIRST  PERMANENT  TRIBUNAL  OF  THE  STATES 

Should  not  a  court  be  established  by  authority  of  Congress,  to  take  cognizance  of  prizes 
made  by  the  Continental  vessels  ?  Whatever  the  mode  is,  which  they  are  pleased  to  adopt, 
there  is  an  absolute  necessity  of  its  being  speedily  determined  on;  for  I  cannot  spare  time 
from  military  affairs,  to  give  proper  attention  to  these  matters.  (Extract  from  a  letter  of 
General  Washington  from  Camp  at  Cambridge,  to  the  President  of  Congress,  November  II, 
1775-  Worthington  Chauncey  Ford,  Editor,  The  Writings  of  George  II  ashington,  Vol.  Ill, 
18S9,  pp.  213-214.) 

Resolved,  That  a  committee  be  appointed,  to  take  into  consideration  so  much  of  said 
letter  as  relates  to  the  disposal  of  such  vessels  and  cargoes  belonging  to  the  enemy,  as  shall 
fall  into  the  hands  of,  or  be  taken  by,  the  inhabitants  of  the  United  Colonies. 

That  the  Committee  consist  of  7.  (Journals  of  the  Continental  Congress,  Session  of 
November  17,  1775,  Library  of  Congress  edition,  Vol.  Ill,   1005,  PP-  357-35$-) 

4.  That  it  be  and  is  hereby  recommended  to  the  several  legislatures  in  the  United  Colo- 
nies, as  soon  as  possible,  to  erect  courts  of  "Justice,  or  give  jurisdiction  to  the  courts  now  in 
being  for  the  purpose  of  determining  concerning  the  captures  to  be  made  as  aforesaid,  and 
to  provide  that  all  trials  in  such  case  be  had  by  a  jury  under  such  qualifications,  as  to  the 
respective  legislatures  shall  seem  expedient. 

5.  That  all  prosecutions  shall  be  commenced  in  the  court  of  that  colony,  in  which  the 
captures  shall  be  made,  but  if  no  such  court  be  at  that  time  erected  in  the  said  colony,  or 
if  the  capture  be  made  on  open  sea,  then  the  prosecution  shall  be  in  the  court  of  such 
colony  as  the  captor  may  find  most  convenient,  provided  that  nothing  contained  in  this 
-esolution  shall  be  construed  so  as  to  enable  the  captor  to  remove  his  prize  from  any  colony 
competent  to  determine  concerning  the  seizure,  after  he  shall  have  carried  the  vessel  so 
seized  within  any  harbour  of  the  same. 

6.  That  in  all  cases  an  appeal  shall  be  allowed  to  the  Congress,  or  such  person  or  per- 
sons as  they  shall  appoint  for  the  trial  of  appeals,  provided  the  appeal  be  demanded  within 
five  days  after  definitive  sentence,  and  such  appeal  be  lodged  with  the  secretary  of  Congress 
within  forty  days  afterwards,  and  provided  the  party  appealing  shall  give  security  to  prose- 
cute the  said  appeal  to  effect,  and  in  case  of  the  death  of  the  secretary  during  the  recess  of 
Congress,  then  the  said  appeal  to  be  lodged  in  Congress  within  20  days  after  the  meeting 
thereof.  (Journals  of  the  Continental  Congress,  Session  of  November  25,  1775,  Library  of 
Congress  edition,  Vol.  III.  1905,  />/>.  373-374-) 

The  resolves  relative  to  captures  made  by  Continental  armed  vessels  only  want  a 
court  established  for  trial,  to  make  them  complete.  This.  I  hope,  will  be  soon  done,  as  1 
have  taken  the  liberty  to  urge  it  often  to  the  Congress.  (Extract  from  a  letter  of  General 
Washington,  from  Cambridge,  to  the  President  of  the  Congress,  December  14,  1775- 
Worthington  Chauncey  Ford,  Editor,  The  Writings  of  George  Washington,  Vol.  Ill,  1889, 
P-  -'/-/■ ) 

Resolved,  That  a  standing  committee,  to  consist  of  five  members,  be  appointed  to  hear 
and  determine  upon  appeals  brought  against  sentences  passed  on  libels  in  the  courts  of 
Admiralty  in  the  respective  states,  agreeable  to  the  resolutions  of  Congress ;  and  that  the 
several  appeals,  when  lodged  with  the  secretary,  be  by  him  delivered  to  them  for  their  final 
determination:  .  .  .  (Journals  of  the  Continental  Congress,  Session  of  January  so,  1777, 
Library  of  Congress  edition,  Vol.  VII,  1907,  p.  75.) 

Article  IX.  The  United  States  in  Congress  assembled,  shall  have  the  sole  and  exclu- 
sive right  and  power  ...  of  establishing  rules  for  deciding  in  all  cases,  what  captures  on 
land  or  water  shall  be  legal,  and  in  what  manner  prizes  taken  by  land  or  naval  forces  in 
the  service  of  the  United  States  shall  be  divided  or  appropriated  .  .  .  and  establishing- 
courts   for   receiving   and    determining   finally   appeals    in    all   cases    of  captures,    provided 

208 


THE   FIRST    PERMANENT   TRIBUNAL    OF   THE   STATES  209 

that  no  member  of  Congress  shall  be  appointed  a  judge  of  any  of  the  said  courts.  (The 
Articles  of  Confederation  agreed  to  by  the  Congress,  November  15,  1777,  Revised  Statutes 
of  the  United  States,  1878,  p.  p.) 

Resolved,  That  a  court  be  established  for  the  trial  of  all  appeals  from  the  courts  of 
admiralty  in  these  United  States,  in  cases  of  capture,  to  consist  of  three  judges,  appointed 
and  commissioned  by  Congress,  either  two  of  whom,  in  the  absence  of  the  other,  to  hold 
the  said  court  for  the  despatch  of  business : 

That  the  said  court  appoint  their  own  register: 

That  the  trials  therein  be  according  to  the  usage  of  nations  and  not  by  jury:  .  .  . 
(Journals  of  the  Continental  Congress,  Session  of  January  is,  1780,  Library   of  Congress 
edition,  Vol.  XVI,  1910,  p.  67.) 

Resolved,  That  the  stile  of  the  Court  of  Appeals  appointed  by  Congress,  be,  "  The  Court 
of  Appeals  in  Cases  of  Capture."  .  .  . 

Resolved,  That  appeals  from  the  courts  of  admiralty  in  the  respective  states,  be,  as 
heretofore,  demanded  within  five  days  after  definitive  sentence;  and  in  future  such  appeals 
be  lodged  with  the  register  of  the  Court  of  Appeals  in  cases  of  capture  within  forty  days 
thereafter,  provided  the  party  appealing  shall  give  security  to  prosecute  such  appeal  to 
effect. 

Resolved,  That  all  matters  respecting  appeals  in  cases  of  capture,  now  depending  before 
Congress,  or  the  commissioners  of  appeals,  consisting  of  members  of  Congress,  be  referred 
to  the  newly  erected  Court  of  Appeals,  to  be  there  adjudged  and  determined  according  to 
law  ;  and  that  all  papers  touching  appeals  in  cases  of  capture,  lodged  in  the  office  of  the 
secretary  of  Congress,  be  delivered  to  and  lodged  with  the  register  of  the  Court  of 
Appeals.  (Journals  of  the  Continental  Congress,  Session  of  May  24,  1780,  Library  of 
Congress  edition,  Vol.  XVII,  1910,  pp.  458,  459.) 

Section  8.  The  Congress  shall  have  Power  .  .  .  To  declare  War,  grant  Letters  of 
Marque  and  Reprisal,  and  make  Rules  concerning  Captures  on  Land  and  Water;  .  .  . 
(Constitution  of  the  United  States,  Article  I.) 

Section  2.  The  judicial  Power  shall  extend  ...  to  all  Cases  of  admiralty  and  mari- 
time Jurisdiction.  .  .  .   (Constitution  of  the  United  States,  Article  III.) 

The  district  courts  of  the  Lmited  States  are  courts  of  prize ;  and  have  power  to  carry 
into  effect  the  sentences  of  the  old  continental  courts  of  appeals  in  prize  causes.  (Per 
Mr.  Chief  Justice  Marshall  in  Jennings  v.  Carson,  4  Cranch,  2,  decided  in  1807.) 


CHAPTER  X 


THE    FIRST    PERMANENT    TRIBUNAL   OF    THE   STATES 


Voluntary 
Self-denials  — 
Including 
Disarmament 


Diplomatic 
and 

Military 
Settlements 


An  examination  of  that  part  of  the  ninth  of  the  Articles  of  Confederation 
relating  to  controversies  and  their  settlement  shows  that  it  deals  with  three 
situations  or  conditions:  first,  prizes  taken  by  land  or  naval  forces;  second, 
the  trial  of  piracies  and  felonies  committed  on  the  high  seas;  third,  contro- 
versies of  all  kinds  between  the  States,  sovereign,  free  and  independent, 
forming  the  Confederation,  styled  in  Article  I,  The  United  States  of  America. 

The  members  of  the  Congress  understood,  or  their  experience  had  taught 
them  by  1777,  when  the  Articles  of  Confederation  were  adopted  by  them  for 
ratification  by  the  States,  that,  although  "  each  State  retains  its  sovereignty, 
freedom,  and  independence,  and  every  power,  jurisdiction,  and  right  which  is 
not  by  this  Confederation  expressly  delegated  to  the  United  States  in  Congress 
assembled,"  it  was  nevertheless  necessary  to  provide  for  certain  things  if  they 
were  to  hold  together  during  the  war  against  the  mother  country.  They 
might  agree  to  use  force  against  Great  Britain,  and,  indeed,  their  union  was 
formed  for  this  purpose ;  but  they  were  unwilling,  as  are  all  sovereign,  free 
and  independent  States,  to  have  force  used  against  themselves.  They  had 
practically  disqualified  themselves  from  settling  disputes  arising  between  them 
by  direct  negotiations,  because  in  Article  VI  they  had  provided  that  "  no  two 
or  more  States  shall  enter  into  any  treaty,  confederation  or  alliance  whatever 
between  them,  without  the  consent  of  the  United  States  in  Congress  assem- 
bled." In  the  same  article  they  had  practically  agreed  to  such  a  limitation  of 
their  forces  as  to  amount  to  disarmament,  providing  that  neither  vessels  of 
war  nor  armed  forces  should  "  be  kept  up  in  time  of  peace  by  any  State,  except 
such  number  only,  as  shall  be  deemed  necessary  by  the  United  States  in  Con- 
gress assembled,  for  the  defence  of  such  State,  or  its  trade."  And  they  drew 
the  logical  conclusion  from  this  provision,  that  no  State  should  engage  in 
war  without  the  consent  of  the  Congress,  unless  it  was  actually  invaded  by 
enemies  or  was  menaced  by  such  invasion. 

The  time-honored  method  of  settling  controversies  between  States  sover- 
eign, free  and  independent,  has  been  and  still  is  either  by  diplomatic  negotia- 
tion or  by  armed  conflict;  and  the  Revolutionary  statesmen  were  intelligent 
enough  to  recognize  that,  if  diplomacy  could  not  effect  a  settlement,  and  if  an 

210 


THE    FIRST    PERMANENT    TRIBUNAL   OF   THE    STATES 


211 


appeal  to  arms  were  excluded,  there  must  be  a  resort  to  some  method  of  settle- 
ment which  was  neither  diplomatic  nor  military.  They  interposed,  therefore,  K"n°dhefr 
between  the  two,  the  judicial  method,  recognizing,  although  not  appealing  to  s^11""611* 
Aristotle  in  confirmation  thereof,  that  "  justice  is  the  bond  of  men  in  States, 
and  the  administration  of  justice,  which  is  the  determination  of  what  is  just, 
is  the  principle  of  order  in  political  society."  They  had  in  mind  a  court  of 
justice,  and  they  so  said.  They  recognized  that  the  court,  to  have  jurisdic- 
tion over  the  States  and  to  bind  their  actions,  could  only  be  created  by  them 
directly,  or  by  their  agent  for  this  purpose,  as  they  had  no  superior.  They 
therefore  invested  Congress  with  the  power,  a  Congress  in  which  each  sover- 
eign, free  and  independent  State  of  the  Confederacy  had  an  equal  vote,  al- 
though each  might,  according  to  its  pleasure,  send  an  unequal  number  of 
representatives. 

After  having  defined  the  matters  which,  in  the  interest  of  the  States,  had   Courts 
to  be  settled  with  those  countries  which  thev  considered  foreien  and  those    Confederated 

States 

which  they  considered,  by  virtue  of  the  Confederation,  as  domestic,  the  Con- 
federated States  authorized  the  Congress  as  their  agent,  or  rather  their  own 
delegates  in  Congress  assembled,  to  appoint  "  courts  for  the  trial  of  piracies 
and  felonies  committed  on  the  high  seas ;  "  to  establish  "  courts  for  receiving 
and  determining  finally  appeals  in  all  cases  of  captures ;  "  and,  in  the  matter 
of  disputes  between  the  States  themselves,  to  appoint  "  commissioners  or 
judges  to  constitute  a  court  for  hearing  and  determining  the  matter  in  ques- 
tion." 1 

It  is  to  be  observed  that  these  are  likewise  considered  judicial  questions  by 
the  Constitution,  which  succeeded  the  Confederation,  and  that  they  are  either 
referred  to  courts  by  the  Constitution  or  by  act  of  Congress  passed  in  pur- 
suance of  authority  vested  in  that  body  by  the  Constitution.  Therefore,  in 
Section  8  of  Article  I  of  the  Constitution,  vesting  all  the  legislative  power  in 
Congress  which  the  States  cared  to  grant  to  the  United  States,  it  is  said  that 
"  Congress  shall  have  Power  .  .  .  To  define  and  punish  Piracies  and  Felonies 
committed  on  the  high  Seas."  Going  a  step  further,  the  framers  of  the  Con- 
stitution added  "  and  Offenses  against  the  Law  of  Nations ;  "  and,  in  the 
clause  immediately  following,  the  Congress  is  invested  with  the  power  "  to 
make  Rules  concerning  Captures  on  Land  and  Water."  In  Article  III  of  the 
Constitution  it  is  declared  that  "  the  judicial  Power  of  the  United  States,  shall 
be  vested  in  one  supreme  Court,  and  in  such  inferior  Courts  as  the  Congress 
may  from  time  to  time  ordain  and  establish,"  in  accordance  with  the  clause 
in  Section  8  of  Article  I,  authorizing  Congress  "  to  constitute  Tribunals  infe- 
rior to  the  supreme  Court." 

After  providing  in  the  1st  section  of  Article  III  for  the  creation  of  a 

1  For  the  text  of  the  Articles  of  Confederation  and  the  Constitution,  see  Appendix,  pp. 
49-4-513. 


212 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


International 
Questions 


International 
Implications 
of  the 

Confederate 
Judiciary 


Supreme  Court  and  of  inferior  courts,  the  Constitution  vests  the  judiciary 
with  the  express  power  to  pass  upon  and  to  decide  all  cases  affecting  ambas- 
sadors and  other  public  ministers,  and  consuls,  all  cases  of  admiralty  and 
maritime  jurisdiction,  controversies  to  which  the  United  States  shall  be  a 
party,  controversies  between  two  or  more  States,  and  controversies  between  a 
State  and  foreign  States,  citizens  or  subjects.  It  should  further  be  said  in 
this  connection  that  certain  judicial  questions  were  deemed  to  be  of  such 
importance  that  the  Supreme  Court  was  vested  with  original  jurisdiction 
thereof,  wmereas  of  other  questions  the  Supreme  Court  was  to  exercise  appel- 
late jurisdiction.     Thus  in  Article  III,  Section  2,  of  the  Constitution: 

In  all  cases  affecting  Ambassadors,  other  public  Ministers  and  Consuls, 
and  those  in  which  a  State  shall  be  Party,  the  supreme  Court  shall  have 
original  Jurisdiction. 

It  will  be  seen  that  the  first  category  consists  of  international  questions, 
cases  affecting  ambassadors,  public  ministers  and  consuls,  and  suits  between 
States  of  the  American  Union,  which,  by  the  10th  Amendment  to  the  Con- 
stitution, are  regarded  as  possessing  the  powers  not  delegated  to  the  United 
States  in  the  Constitution.  As  in  the  case  of  the  Confederation,  the  States 
renounced  the  right  to  enter  into  direct  negotiations  or  to  engage  in  war  by 
two  clauses  of  the  10th  section  of  Article  I,  providing  that  "  No  State  shall 
enter  into  any  Treaty,  Alliance,  or  Confederation ;  "  that  "  no  State  shall, 
without  the  Consent  of  Congress  .  .  .  keep  Troops,  or  Ships  of  War  in  time 
of  Peace,  enter  into  any  Agreement  or  Compact  with  another  State,  or  with 
a  foreign  Power,  or  engage  in  War,  unless  actually  invaded  or  in  such  immi- 
nent Danger  as  will  not  admit  of  delay."  In  other  words,  in  the  relations  of 
the  States  with  foreign  nations,  they  invested  the  United  States  with  their 
conduct  and  adjustment.  In  questions  between  and  among  themselves  they 
created  another  agency  of  their  own,  by  which  and  through  which  these  ques- 
tions should  be  settled.  They  showed  their  belief  in  the  efficacy  of  judicial 
settlement  by  investing  their  Supreme  Court  with  original  jurisdiction  in 
questions  concerning  ambassadors,  ministers,  and  consuls,  in  the  hope  that 
disputes  concerning  these  matters  would  be  settled  by  judicial  process, 
just  as  the  disputes  between  themselves  were  to  be  settled  by  judicial 
process. 

But  as  the  nations  of  the  world  had  not  renounced  direct  negotiations  or  a 
resort  to  arms,  as  the  States  themselves  had  done  in  the  exercise  of  their 
wisdom  and  discretion,  the  United  States  as  their  agent  was  invested  by  the 
Articles  of  Confederation  with  the  right  to  conduct  diplomatic  negotiations 
and  to  resort  to  war  if  need  be,  thus  confessing  their  faith  in  judicial  settle- 
ment and  manifesting,  it  would  seem,  their  willingness  to  have  the  disputes 
of  the  Union,  like  the  disputes  of  the  States  in  matters  of  law  and  equity, 


THE    FIRST    PERMANENT    TRIBUNAL   OF    THE   STATES  213 

settled  by  decisions  of  courts,  if  the  United  States,  like  the  States  in  their 
wisdom  and  discretion,  should  interpose  the  judicial  remedy  between  the  break- 
down of  diplomacy  and  the  resort  to  arms.  Because  of  the  novelty  and  of 
the  interest  of  the  provisions  of  the  Confederation  in  these  respects,  it  is  of 
importance  to  dwell  upon  them,  since  they  are  as  capable  of  application  to 
the  sovereign,  free  and  independent  States  forming  the  society  of  nations  as 
they  were  to  the  sovereign,  free  and  independent  States  forming  the  Con- 
federation. Because  of  their  retention  in  the  Constitution  and  of  their  de- 
velopment into  agencies  which  have  justified  themselves  for  a  hundred  years 
and  more  in  the  ■settlement  of  disputes  between  the  States  of  the  Union  it  is 
more  evident  to  us  today  than  it  was  to  them  that  these  agencies  are  likewise 
applicable  to  disputes  between  and  among  the  members  of  the  society  of 
nations. 

There  is  an  added  interest  in  such  an  examination,  because  the  imperfect 
procedure  of  the  Confederation  became  the  perfected  procedure  of  the  Con- 
stitution. By  the  determination  of  what  is  just,  exactly  as  set  forth  in  the 
teachings  of  Aristotle,  the  principle  of  order  in  that  political  society  which 
we  call  the  United  States  can  be  and  will  be  the  principle  of  order  in  the 
political  society  which  we  call  the  society  of  nations  unless  the  nations,  like 
Saturn,  are  always  to  devour  their  offspring. 

It  was  natural  that  the  framers  of  the  Constitution  should  confess  their  Lessons 

or  the 

faith  in  judicial  settlement,  because  there  were  courts  in  all  the  States  and  a  ^^s 
Supreme  Court  in  every  State.  They  had  had  experience  with  felonies  and 
piracies  committed  on  the  high  seas  ;  they  had  been  parties  to  the  wars  of  Great 
Britain  —  indeed,  the  Seven  Years  War,  called  by  us  the  French  and  Indian 
War,  began  in  the  western  world  —  and  they  felt  the  necessity  of  rules  for 
the  capture  and  disposition  of  prizes.  Vice  admiralty  courts  had  been  estab- 
lished in  the  colonies  with  appeals  to  Great  Britain,  and  on  the  eve  of  the 
Revolution  these  admiralty  courts  had  come  very  prominently  to  their  atten- 
tion, in  that  they  had  recently  been  invested  with  the  trial  of  political  offenses 
without  the  intervention  of  a  jury,  as  a  court  of  admiralty  is  a  court  of  civil, 
not  of  common,  law.  They  had  had  experience  with  disputes  not  only  with 
the  mother  country  concerning  the  correct  interpretation  of  their  charters; 
but  with  other  colonies  on  the  same  and  other  matters.  The  King  in  Council 
had  been  the  court  of  appeal  in  such  cases;  the  King  in  Council  exercised  a 
large  control  over  the  colonies  as  well  as  in  the  settlement  of  their  disputes; 
and  the  King  in  Council  is  today,  through  the  instrumentality  of  the  judicial 
committee  thereof,  the  court  of  appeal  from  the  colonies  and  of  greater 
Britain.  It  was  therefore  natural  that,  brought  together  by  what  they  re- 
garded the  oppression  of  the  mother  country,  they  should  settle  these  matters 
in  the  way  with  which  they  were  familiar,  preferring  the  old  rut  to  the  new 
road  whenever  possible. 


Felonies 


214  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Therefore,  under  the  Articles  of  Confederation  the  Congress,  with  its 
powerless  president,  was  substituted  for  the  Council,  with  its  powerful  king. 
In  the  exercise  of  this  jurisdiction,  the  Congress  endeavored  to  avail  itself 
of  the  institutions  and  agencies  of  the  States,  without  attempting  to  create 
its  own  as  to  which  it  felt  a  lack  of  authority.  Therefore,  in  the  beginning 
the  Congress  contented  itself  with  requesting  the  States  to  assume  jurisdiction 
where  their  agencies  could  be  made  use  of;  but,  in  the  end,  Congress  felt  itself 
obliged  to  create  an  agency  of  its  own,  notwithstanding  the  existence  of  local 
institutions.  It  refrained  from  doing  so  until  the  Articles  of  Confederation 
had  been  adopted  by  the  Congress  and  approved  by  the  majority  of  the  States, 
although  not  by  all  of  them.  In  the  case  of  disputes  between  the  States,  the 
Congress  appears  to  have  followed  the  practice  of  the  King  in  Council  in 
accepting  jurisdiction  before  referring  the  matters  to  judicial  determination 
by  a  commission  or  committee.1 

Let  us  now  take  up  the  provisions  of  the  ninth  of  the  Articles  of  Confedera- 
TriaIof  tion  in  each  of  these  matters,  and  in  the  order  in  which  they  are  set  forth 

an™cies  therein.     "  The  United  States,  in  Congress  assembled,  shall  have  the  sole  and 

exclusive  right  and  power  of  .  .  .  appointing  courts  for  the  trial  of  piracies 
and  felonies  committed  on  the  high  seas."  Under  this  heading,  the  Congress 
contented  itself  with  utilizing  the  machinery  of  the  States.  Thus,  by  an  ordi- 
nance of  April  5,  1781,  it  was  provided  that  persons  charged  with  such  offenses 
should  be  "  enquired  of,  tried  and  adjudged  by  grand  and  petit  juries,  accord- 
ing to  the  course  of  the  common  law,  in  like  manner  as  if  the  piracy  or  felony 
were  committed  upon  the  land,  and  within  some  county,  district  or  precinct  in 
one  of  these  United  States."  2 

Having  thus  provided  for  the  law,  Congress  determined  the  court  in  which 
the  law  should  be  administered.  Thus,  "  the  justices  of  the  supreme  or  supe- 
rior courts  of  judicature,  and  judge  of  the  Court  of  Admiralty  of  the  several 
and  respective  states,  or  any  two  or  more  of  them,  are  hereby  constituted  and 
appointed  judges  for  hearing  and  trying  such  offenders."  In  some  of  the 
States  there  was  more  than  one  Admiralty  judge.  Therefore,  the  Congress 
met  this  contingency  by  providing  that  "  if  there  shall  be  more  than  one  judge 
of  the  admiralty  in  any  of  the  United  States,  that  then,  and  in  such  case,  the 
supreme  executive  power  of  such  State  may  and  shall  commissionate  one  of 
them  exclusively  to  join  in  performing  the  duties  required  by  this  ordinance." 

1  The  following  account  is  based  upon  an  admirable  and  learned  article  entitled  Federal 
Courts  Prior  to  the  Adoption  of  the  Constitution,  bv  the  Honorable  J.  C.  Bancroft  Davis,  Re- 
porter to  the  Supreme  Court  of  the  United  States  (131  U.  S..  App.  xix-lxiii).  and  The  Prede- 
cessor of  the  Supreme  Court,  by  Professor  J.  Franklin  Jameson,  in  the  volume  entitled  Essays 
in  the  Constitutional  History  of  the  United  States  in  the  Formalize  Period,  1775-1789  (1889), 
pp.  1—45.  Where  not  directly  quoted,  the  texts  of  these  remarkable  essays  have  been  para- 
phrased. A  valuable  account  of  this  matter  will  be  found  in  Chapters  iv.  v.  and  vi  of 
Hampton  L.  Carson's  History  of  the  Supreme  Court  of  the  United  States,  Vol.  i. 

'Journals  of  the  Continental  Congress,  Vol.  xix,  pp.  354-6. 


THE   FIRST    PERMANENT    TRIBUNAL   OF   THE    STATES  215 

As  this  ordinance  was  amended  on  March  4,  1783, 1  in  matters  of  form  rather 
than  of  substance,  it  is  not  necessary  to  quote  it,  and,  following  the  example 
of  Judge  Davis  in  this  very  matter,  "  I  have  not  thought  that  any  good  purpose 
would  be  served  by  hunting  up  and  printing  a  list  of  the  persons  tried  under 
these  ordinances."  2 

The  important  fact  for  the  matter  in  hand  is  that  the  States  represented 
in  Congress  felt  the  need  of  some  provision  for  the  trial  of  piracies  and  fel- 
onies committed  on  the  high  seas,  and  the  mere  statement  of  this  fact  is  suffi- 
cient as  showing  that,  in  their  opinion,  a  judicial  body  was  required  for  this 
purpose.  As  they  were  to  be  tried  by  a  law  common  to  the  States,  with 
which  the  States  were  familiar  and  which  they  had  administered,  the  agencies 
of  the  States  were  used. 

"  The  United  States  in  Congress  assembled  shall  have  the  sole  and  exclu- 
sive right  and  power  of  .  .  .  establishing  courts  for  receiving  and  determining 
finally  appeals  in  all  cases  of  captures,  provided  that  no  member  of  Congress 
shall  be  appointed  a  judge  of  any  of  the  said  courts."  The  power  vested  in 
Congress  was  exercised  not  merely,  as  in  the  case  of  piracies  and  felonies,  at 
the  end  of  the  Revolution,  but  at  the  very  beginning.  The  State  machinery 
which  was  first  employed  was  found  inadequate,  and  the  Congress  established 
a  court  of  its  own,  finally  known  as  the  Court  of  Appeals  in  Cases  of  Capture. 
This  is  the  first  instance  of  a  federal  tribunal  created  within  the  United  States,    The 

First 

and  is  considered  as  the  immediate  predecessor  of  the  Supreme  Court  thereof; 
although,  as  will  be  seen  later,  it  shares  this  exalted  honor  with  the  commis- 
sions under  the  ninth  article  appointed  for  the  trial  of  controversies  between 
the  States.  It  is  therefore  necessary  to  define  the  nature  and  to  consider  the 
origin  and  development  of  this  tribunal  in  some  detail. 

The  necessity  of  prize  procedure  was  evident  from  the  beginning  of  the 
Revolution,  indeed  before  the  Declaration  of  Independence,  and  the  experi- 
ence had  in  the  matter  of  prizes  forced  Congress,  somewhat  reluctantly,  to 
exercise  the  power  of  appointing  a  court  for  this  purpose  before  the  Articles 
of  Confederation  had  been  adopted  by  the  last  of  the  States  on  March  1,  1781, 
thus  investing  the  Congress  with  the  power  legally  so  to  do.  It  was  inevitable 
that  enterprising  merchantmen  of  the  different  States  would  waylay  British 
commerce  upon  the  high  seas,  and  it  was  clear  to  discerning  minds  that  vessels 
belonging  to  different  States  and  commanded  by  citizens  thereof  would  fall 
out  among  themselves  as  to  the  shares  of  the  prize  to  which  they  thought 
themselves  entitled,  involve  the  States  in  controversies  and,  by  lawless  conduct, 
draw  the  United  States  into  controversy,  perhaps  into  conflict,  with  foreign 
States. 

1  Journals  of  the  American  Congress  from  i"i  to  1788  (1823),  Vol.  iv,  p.  170. 

2  131  U.  S.,  Aft  .  p.  xiv. 


Federal 
Tribunal 


216  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

The  Revolution  broke  out  in  Massachusetts.  It  was  therefore  in  Massa- 
chusetts that  the  first  prize  court  was  established.  In  June,  1775.  Elbridge 
Gerry,  then  beginning-  a  long  and  distinguished  political  career,  moved  the 
Provincial  Congress  of  that  Colony  to  encourage  the  fitting  out  of  armed 
vessels  and  to  establish  a  court  for  the  trial  and  condemnation  of  prizes.  On 
November  10,  1775,  an  act  was  passed  which  has  been  stated  to  be  "  the  first 
actual  avowal  of  offensive  hostilities  against  the  mother  country,  which  is  to 
be  found  in  the  annals  of  the  revolution,"  x  and  which  John  Adams,  then  at 
the  bar  when  not  upon  the  hustings,  considered  to  be  one  of  the  "  boldest,  most 
dangerous,  and  most  important  measures  and  epochas  in  the  history  of  the 
new  world,  the  commencement  of  an  independent  national  establishment  of  a 
new  maritime  and  naval  military  power."  2  General  Washington,  then  in 
command  of  the  Continental  army  in  and  about  Boston,  which  he  had  besieged 
and  hemmed  in,  recognized  the  importance  of  this  action.  He  also  felt  the 
necessity  of  uniform  regulations  and  practice  to  prevent  the  States  from  quar- 
reling among  themselves,  to  secure  uniformity  of  decision  in  matters  of  prize, 
which  was  in  the  interest  alike  of  the  States  and  of  the  United  States  in  their 
relations  with  foreign  countries.  Therefore,  on  November  11,  1775,  the  day 
after  the  passage  of  the  Massachusetts  act,  he  thus  wrote  to  John  Hancock, 
President  of  the  Continental  Congress: 

Enclosed  you  have  a  copy  of  an  act  passed  this  session,  by  the  honorable 
Council  and  House  of  Representatives  of  this  province.  It  respects  such 
captures  as  may  be  made  by  vessels  fitted  out  by  the  province,  or  by  indi- 
viduals thereof.  As  the  armed  vessels,  fitted  out  at  the  Continental  expense, 
do  not  come  under  this  law.  I  would  have  it  submitted  to  the  consideration 
of  Congress,  to  point  out  a  more  summary  way  of  proceeding,  to  determine 
the  property  and  mode  of  condemnation  of  such  prizes  as  have  been  or  here- 
after may  be  made,  than  is  specified  in  this  act. 

Should  not  a  court  be  established  by  authority  of  Congress,  to  take  cog- 
nizance of  prizes  made  by  the  Continental  vessels?  Whatever  the  mode  is, 
which  they  are  pleased  to  adopt,  there  is  an  absolute  necessity  of  its  being 
speedily  determined  on.  .  .  .3 

Fearing  that  Congress  had  not  taken  action,  he  again  wrote  to  its  president 
on  December  4th  of  the  same  year : 

It  is  some  time  since  I  recommended  to  the  Congress,  that  they  would 
institute  a  court  for  the  trial  of  prizes  made  by  the  Continental  armed  ves- 
sels, which  I  hope  they  have  ere  now  taken  into  their  consideration ;  other- 
wise I  should  again  take  the  liberty  of  urging  it  in  the  most  pressing 
manner.4 

And,  as  showing  the  importance  which  the  General  rightly  attached  to  this 

1  James  T.  Austin,  The  Life  of  Elbridge  Gerry,  1828.  Vol.  i,  p.  94. 

2  Ibid.,  p.  96. 

3  Ford,  Writings  of  George  Washington,  Vol.  iii,  p.  213;  Sparks,  Vol.  iii,  pp.  154-5. 

4  Ford,  ibid.,  p.  257 ;  Sparks,  p.  184. 


THE    FIRST    PERMANENT    TRIBUNAL   OF   THE    STATES  217 

matter,  a  further  quotation  may  be  made  from  a  letter  addressed  to  his  fellow- 
Virginian,  Richard  Henry  Lee,  who,  a  few  months  later,  on  June  7,  1776,  was 
to  move  the  momentous  resolutions  in  Congress  "  that  these  United  Colonies 
are  and  of  right  ought  to  be  free  and  independent  States."  1  Thus,  on  De- 
cember 26th,  he  wrote  to  Mr.  Lee : 

...  I  must  beg  of  you,  my  good  Sir,  to  use  your  influence  in  having  a 
court  of  admiralty,  or  some  power  appointed  to  hear  and  determine  all  matters 
relative  to  captures ;  you  cannot  conceive  how  I  am  plagued  on  this  head, 
and  how  impossible  it  is  for  me  to  hear  and  determine  upon  matters  of 
this  sort,  when  the  facts,  perhaps,  are  only  to  be  ascertained  at  ports,  forty, 
fifty,  or  more  miles  distant,  without  bringing  the  parties  here  at  great 
trouble  and  expense.  At  any  rate,  my  time  will  not  allow  me  to  be  a  com- 
petent judge  of  this  business.2 

The  Congress,  however,  had  not  been  remiss,  and  immediately  upon  the 
receipt  of  General  Washington's  first  letter  it  took  action.  On  November  17th 
it  was  "  Resolved,  That  a  committee  be  appointed  to  take  into  consideration 
so  much  of  said  letter  as  relates  to  the  disposal  of  such  vessels  and  cargoes 
belonging  to  the  enemy,  as  shall  fall  into  the  hands  of,  or  be  taken  by,  the 
inhabitants  of  the  United  Colonies."  3  On  November  23d,  the  committee 
to  which  the  letter  was  referred  brought  in  its  report.  It  was  ordered  to 
lie  upon  the  table  "  for  the  perusal  of  the  members;"  it  was  "debated  by 
paragraphs  "  on  the  24th  and  25th  of  the  same  month,  and  adopted  on  No- 
vember 25,  1775.4  The  resolutions  authorized  the  capture  of  prizes  upon 
the  high  seas  and  legalized  those  which  had  alread  been  made.  They  deter- 
mined the  shares  of  the  captors  in  the  prize  and  the  distribution  of  the  money. 
They  provided,  as  later  in  the  case  of  piracies  and  felonies  committed  on  the 
high  seas,  that  the  trial  should  take  place  in  the  colonial  courts  (because  at  this 
time  the  Declaration  of  Independence  had  not  been  proclaimed),  and  that  an 
appeal  should  lie  to  the  Congress.  The  section  dealing  with  procedure  on 
appeal  thus  reads : 

6.  That  in  all  cases  an  appeal  shall  be  allowed  to  the  Congress,  or  such 
person  or  persons  as  they  shall  appoint  for  the  trial  of  appeals,  provided 
the  appeal  be  demanded  within  five  days  after  definitive  sentence,  and  such 
appeal  be  lodged  with  the  secretary  of  Congress  within  forty  days  after- 
wards, and  provided  the  party  appealing  shall  give  security  to  prosecute  the 
said  appeal  to  effect,  and  in  case  of  the  death  of  the  secretary  during  the 
recess  of  Congress,  then  the  said  appeal  to  be  lodged  in  Congress  within  20 
days  after  the  meeting  thereof. ■' 

The  passage  of  this  resolution  was  pleasing  to  "  the  General,"  and,  with  a 

1  Journals  of  the  Continental  Congress,  Vol.  v.  p.  425. 

2  Ford,  Writings  of  George  Washington,  Vol.  Hi,  p.  274;  Sparks,  Vol.  iii,  p.  217. 

3  Journals  of  the  Continental  Congress,  Vol.  iii,  pp.  357-8. 
*  Ibid.,  pp.  371-5. 

s  Ibid.,  p.  374. 


218 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


First  Case 
of  Appeal 


Congressional 
Committee 
on  Appeals 


clearness  of  vision  and  a  tenacity  of  purpose,  recognized  by  his  countrymen 
and  with  which  a  grateful  posterity  credits  him,  he  pointed  out  the  one  thing 
needed  to  perfect  the  action  of  Congress  in  a  passage  from  a  letter  to  its  presi- 
dent, dated  December  14,  1775  : 

The  resolves  relative  to  captures  made  by  Continental  armed  vessels 
only  want  a  court  established  for  trial,  to  make  them  complete.  This,  I 
hope,  will  be  soon  done,  as  I  have  taken  the  liberty  to  urge  it  often  to  the 
Congress.1 

In  the  end,  the  Congress  was  forced  to  take  the  action  which  the  far-sighted 
Washington  had  recommended  in  the  beginning;  but  it  was  only  taken  after 
great  hesitation,  with  much  reluctance,  and  when  a  very  bitter  experience  had 
convinced  its  members  of  the  absolute  necessity  of  a  court. 

Before  stating  this  incident,  it  should  be  mentioned  that  an  Admiralty 
Court,  generally  requiring  trial  by  jury,  was  organized  in  each  of  the  colonies 
or  States  in  accordance  with  the  recommendation  of  the  Congress  that  this 
be  done,  as  it  will  be  observed  that  Congress  contented  itself  for  the  present 
with  an  appeal  from  the  local  jurisdictions,  which  were  regarded  as  courts  of 
first  instance  in  prize  matters.  The  intent  of  Congress  seems  to  have  been 
misunderstood,  as  on  January  31st  and  February  27,  1776,  two  cases  which 
had  not  been  passed  upon  by  the  colonial  courts  were  referred  direct  to  the 
Congress  by  the  petitioners,  and  in  each  case,  in  accordance  with  its  under- 
standing of  its  resolutions,  the  Congress  referred  the  applicants  to  the  colo- 
nial courts.  However,  a  few  weeks  later  (April  4,  1776),  the  Congress  took 
original  jurisdiction  in  the  matter  of  a  prize  vessel  which  had  been  run  ashore,2 
directed  that  it  be  sold,  and  decreed  the  distribution  of  the  proceeds  arising 
from  the  sale.  This  appears,  however,  to  have  been  the  only  instance  in  which 
the  Congress  took  original  jurisdiction.  Therefore,  it  only  acted  in  cases  of 
appeal,  at  first  directly,  shortly  thereafter  through  committees,  and  finally  by 
means  of  an  appellate  court  established  in  accordance  with  General  Washing- 
ton's recommendation. 

The  first  case  of  appeal  was  that  of  the  schooner  Thistle,3  which  was  laid 
before  Congress  on  August  5,  1776,  a  month  after  the  Declaration  of  Inde- 
pendence. Congress  attempted  to  hear  the  appeal  as  a  body  but  eventually 
referred  it  to  a  special  committee,  and  the  earlier  cases  were  referred  to  special 
committees  until,  in  the  beginning  of  1777,  Congress  felt  the  necessity  of  and 
therefore  created  a  standing  committee  on  appeals,  to  consider  such  cases  as 
should  be  laid  before  it  in  accordance  with  its  resolution  of  November  25, 
1775.     This  important  action  was  taken  on  January  30,  1777,  when  it  was 

1  Ford,  Writings  of  Washington,  Vol.  iii,  p.  274;  Sparks,  Vol.  iii,  pp.  196-7. 

2  Journals  of  the  Continental  Congress,  Vol.  iv,  p.  256. 
s  Ibid.,  Vol.  v,  p.  631. 


THE   FIRST    PERMANENT   TRIBUNAL   OF   THE    STATES  219 

"Resolved,  That  a  standing  committee  to  consist  of  five  members,  be  ap- 
pointed to  hear  and  determine  upon  appeals  brought  against  sentences  passed 
on  libels  in  the  courts  of  Admiralty  in  the  respective  states,  agreeable  to  the 
resolutions  of  Congress;  and  that  the  several  appeals,  when  lodged  with  the 
secretary,  be  by  him  delivered  to  them  for  their  final  determination."  x  The 
members  of  the  committee  were  frequently  changed,  but  the  method  was  con- 
tinued until  a  court  was  established.  The  defects  of  a  changing  personnel, 
even  although  forming  a  permanent  committee,  were  pointed  out  by  the  mer- 
chants and  citizens  of  Philadelphia,  with  the  approval  of  the  Pennsylvanian 
authorities,  in  the  petition  to  Congress  of  May,  1779,  which  is  susceptible  of 
a  larger  application : 

The  success  of  the  American  privateers  exceeded  for  a  time  the  most 
sanguine  expectation,  and  in  all  probability  had  still  continued,  if  certain 
causes  had  not  arisen  to  interrupt  it.  What  these  Causes  are,  we  do  not 
mean  to  enumerate.  We  shall  only  suggest  one,  and  leave  it  to  your  honors 
to  say  what  influence  it  may  have  had,  and  to  provide  a  remedy  against  it 
in  future. 

Certainty  in  the  Laws  is  the  great  Source  of  the  people's  Security,  and 
an  adherence  to  prior  adjudication  is  the  principal  means  of  attaining  that 
certainty.  But  the  Court  of  Appeals  in  its  present  State  is  continually  fluc- 
tuating, the  same  Judges  seldom  acting  for  more  than  a  few  months.  In 
a  Court  where  there  is  this  Constant  change  and  succession  of  Judges,  it  is 
impossible  that  fixed  principles  can  be  established,  or  the  doctrine  of  prece- 
dents ever  take  place. 

Every  obstacle  that  creates  unnecessary  delay  in  the  administration  of 
Justice,  should  be  carefully  removed,  but  when  the  seeds  of  this  delay  are 
sown  in  the  very  Constitution  of  the  Court,  the  People,  rather  than  have 
recourse  to  a  Tribunal  of  that  kind,  will  be  induced  to  give  up  their  right. 
This  we  apprehend  to  be  the  nature  of  the  Court  of  Appeals.  .  .  . 

Impressed  with  these  Considerations  and  others  that  might  be  men- 
tioned, [we  venture]  to  point  out  the  propriety  of  nominating-  Judges  of 
Appeal,  who,  not  being  members  of  Congress,  would  have  more  leisure  for 
the  discharge  of  their  employment.  We  shall  only  observe  that  we  trust  to 
the  Wisdom  of  Congress  to  establish  the  Court  of  Appeal  on  a  lasting  and 
solid  Foundation,  and  to  remove  by  proper  regulations  the  imperfections 
that  are  at  present  so  generally  the  ground  of  Complaint.2 

The  merchants  and  citizens  of  Philadelphia  were  peculiarly  qualified  for 
discovering,  and  were  interested  in  pointing  out,  the  defects  of  the  judgments 
obtained  by  a  standing  committee  on  appeal  in  prizes  with  a  shifting  member- 
ship, for  events  had  taken  place  under  their  very  eyes  which  filled  them  with 
apprehension,  not  only  as  to  their  own  affairs  but  as  to  the  state  of  the  Union, 
if  Union  it  could  be  called.  The  case  of  the  Active,  for  it  is  to  this  that 
reference  is  made,  called  attention  to  another  great  defect  of  the  existing 
system,  because,  although  a  State  decree  was  reversed  by  the  committee  on 

1  Journals  of  the  Continental  Congress,  Vol.  vii,  p.  75. 

3  Jameson,  Essays  in  the  Constitutional  History  of  the  United  States,  pp.  24-26. 


220  THE    UNITED   STATES  I    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

appeal,  the  State  court  did  not  feel  itself  obliged  to  give  effect  to  the  reversal 
of  its  judgment  and  to  recognize  by  proper  action  the  rights  of  property 
acquired  under  federal  appeal, 
case  of  The  facts  of  this  case  are  very  interesting,  and  should  be  stated  in  this 

connection,  as  it  was  one  of  the  cases  which  led  to  the  organization  of  a 
court  of  appeal,  and,  indirectly,  to  the  establishment  of  the  Supreme  Court 
itself.  One  Gideon  Olmstead  and  three  other  citizens  of  Connecticut  were 
captured  by  the  British  and  carried  to  Jamaica,  where  they  were  put  on  board 
the  sloop  Active,  laden  with  a  cargo  of  supplies  for  New  York,  then  in  pos- 
session of  the  British.  They  were  obliged  to  assist  in  its  navigation,  which 
they  were  unwilling  to  do.  They  therefore  rose  against  the  master  and  crew, 
took  possession  of  the  sloop,  and  made  for  the  port  of  Egg  Harbor,  in  New 
Jersey;  but,  before  reaching  this  port,  the  Active,  under  their  control,  was 
captured  by  one  Houston  in  command  of  the  Pennsylvanian  armed  brig  Con- 
vention. The  Active  was  taken  into  the  port  of  Philadelphia  and  libeled  as 
prize  of  the  Convention.  The  case  was  further  complicated  by  the  fact  that 
the  officers  of  a  privateer,  cruising  in  company  with  the  Convention,  claimed 
to  have  taken  part  in  the  capture,  and  therefore  made  claim  to  a  part  of  the 
proceeds.  Olmstead  and  his  companions,  claiming  the  sloop  Active,  in  which 
they  were  in  control  when  taken,  put  in  a  claim  to  the  whole  of  the  proceeds. 
In  the  admiralty  court  of  Pennsylvania  a  trial  was  had  by  jury,  the  verdict 
of  which  was  as  follows: 

One-fourth  of  the  net  proceeds  of  the  sloop  Active  and  her  cargo  to  the 
first  claimants,  three-fourths  of  the  net  proceeds  of  the  said  sloop  and  her 
cargo  to  the  libellant  and  the  second  claimant,  as  per  agreement  between 
them.1 

Judgment  was  entered  upon  the  verdict,  from  which  an  appeal  was  taken  by 
Olmstead  and  others  to  the  Congressional  committee  of  appeal.  On  Decem- 
ber 15,  1778,  the  commissioners  reversed  the  decision  of  the  State  court  and 
rendered  judgment  in  favor  of  Olmstead  and  others,  directing  the  court  below 
to  sell  the  sloop  and  cargo  and  to  pay  the  remainder  to  the  appellants  after 
deducting  costs,  charges  and  expenses.  The  judge  of  the  Pennsylvania  Court 
of  Admiralty  recognized  the  validity  of  the  decision  reversing  the  decree  of  his 
court,  but,  insisting  that  he  could  not  set  aside  the  verdict  of  the  jury,  issued 
an  order  that  the  sloop  and  cargo  be  sold  and  the  proceeds  brought  into  court. 
On  December  28,  1778,  the  appellants  moved  the  committee  that  process  might 
issue  to  the  Admiralty  Court  of  Pennsylvania  commanding  the  marshal  to 
execute  the  decree  of  the  committee.  The  committee  accordingly  directed  the 
marshal  to  hold  the  money  subject  to  their  order,  but  he  disregarded  this  order 
and  paid  the  money  to  the  Admiralty  Judge;  whereupon  the  committee  de- 

1  Journals  of  the  Continental  Congress,  Vol.  xiii,  p.  282. 


THE   FIRST    PERMANENT   TRIBUNAL   OF   THE   STATES  221 

clared  that  "  this  Court,  being  unwilling  to  enter  into  any  proceedings  for 
Contempt,  lest  Consequences  might  ensue  at  this  Juncture  dangerous  to  the 
public  Peace  of  the  United  States,  will  not  proceed  farther  in  this  affair,  nor 
hear  any  Appeal,  until  the  Authority  of  this  Court  shall  be  so  settled  as  to 
give  full  Efficacy  to  their  Decrees  and  Process."  '  At  the  same  time  the  com- 
mittee laid  the  proceedings  before  Congress,  which  approved  their  action  in 
an  elaborate  series  of  resolutions,  which  are  so  important,  because  of  their 
larger  bearing  upon  the  relation  of  the  States,  or  indeed  of  any  nation  to 
foreign  countries,  that  they  are  quoted  in  full : 

Resolved,  That  Congress,  or  such  person  or  persons  as  they  appoint  to   congressional 
hear  and  determine  appeals  from  the  courts  of  admiralty,  have  necessarily  Resolutions  — 

rr  ,,    .  ,       ■    •  r  j       •    •  ^i        l  the    Relation 

the  power  to  examine  as  well  into  decisions  on  facts  as  decisions  on  the  law,   „f  states 
and  to  decree  finally  thereon,  and  that  no  finding  of  a  jury  in  any  court  of 
admiralty,  or  court  for  determining  the  legality  of  captures  on  the  high  seas 
can  or  ought  to  destroy  the  right  of  appeal  and  the  re-examination  of  the 
facts  reserved  to  Congress ; 

That  no  act  of  any  one  State  can  or  ought  to  destroy  the  right  of  appeals, 
to  Congress  in  the  sense  above  declared  : 

That  Congress  is  by  these  United  States  invested  with  the  supreme  sov- 
ereign power  of  war  and  peace : 

That  the  power  of  executing  the  law  of  nations  is  essential  to  the  sov- 
ereign supreme  power  of  war  and  peace: 

That  the  legality  of  all  captures  on  the  high  seas  must  be  determined  by 
the  law  of  nations  : 

That  the  authority  ultimately  and  finally  to  decide  on  all  matters  and 
questions  touching  the  law  of  nations,  does  reside  and  is  vested  in  the  sov- 
ereign supreme  power  of  war  and  peace: 

That  a  controul  by  appeal  is  necessary,  in  order  to  compel  a  just  and 
uniform  execution  of  the  naw  of  nations: 

That  the  said  controul  must  extend  as  well  over  the  decisions  of  juries 
as  judges  in  courts  for  determining  the  legality  of  captures  on  the  sea; 
otherwise  the  juries  would  be  possessed  of  the  ultimate  supreme  power  of 
executing  the  law  of  nations  in  all  cases  of  captures,  and  might  at  any  time 
exercise  the  same  in  such  manner  as  to  prevent  a  possibility  of  being  con- 
trouled ;  a  construction  which  involves  many  inconveniences  and  absurd- 
ities, destroys  an  essential  part  of  the  power  of  war  and  peace  entrusted  to 
Congress,  and  would  disable  the  Congress  of  the  United  States  from  giving 
satisfaction  to  foreign  nations  complaining  of  a  violation  of  neutralities,  of 
treaties  or  other  breaches  of  the  law  of  nations,  and  would  enable  a  jury  in 
any  one  State  to  involve  the  United  States  in  hostilities ;  a  construction 
which  for  these  and  many  other  reasons  is  inadmissible : 

That  this  power  of  controuling  by  appeal  the  several  admiralty  jurisdic- 
tions of  the  states,  has  hitherto  been  exercised  by  Congress  by  the  medium 
of  a  committee  of  their  own  members: 

Resolved,  That  the  committee  before  whom  was  determined  the  appeal 
from  the  court  of  admiralty  for  the  State  of  Pennsylvania,  in  the  case  of  the 
sloop  Active,  was  duly  constituted  and  authorized  to  determine  the  same.2 

1  Jameson,  Essays,  p.  20. 

2  Journals  of  the  Continental  Congress,  Vol.  xiii,  pp.  283-4.     Session  of  March  6,  1779. 


222  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

The  legislature  of  Pennsylvania,  on  March  8,  1780,  repealed  the  statute 
authorizing  juries  to  decide  admiralty  causes,  but  the  case  of  the  Active  was 
not  settled  during  the  period  of  the  Confederation,  nor  indeed  for  many 
years  after  the  demise.  The  moneys  had  been  deposited  with  one  David  Rit- 
tenhouse,  the  distinguished  astronomer,  at  that  time  treasurer  of  the  State, 
after  whose  death  Olmstead  and  others  sued  his  executrices  for  them  in  1802 
in  the  United  States  district  court  for  Pennsylvania.  Judge  Peters  decreed  for 
the  plaintiffs ;  but  the  legislature  of  Pennsylvania,  apparently  desirous  of 
keeping  the  money  within  their  jurisdiction,  passed  an  act  directing  its  attorney 
general  to  sue  the  executrices  for  the  money  and  directing  the  governor  to 
protect  them  from  federal  process.  In  1809  the  case  came  before  the  Supreme 
Court  of  the  United  States,1  which  had  superseded  the  committee  of  appeals  of 
the  Confederation,  and  before  Chief  Justice  Marshall,  who  sat  in  the  seat  of  the 
commissioners,  where  the  decision  of  the  committee  was  finally  affirmed,  and 
execution  of  the  judgment  of  the  district  court  decreed.  Even  then  the  Penn- 
sylvanian  authorities  were  minded  to  resist.  Pennsylvanian  troops  surrounded 
the  house  of  the  executrices  to  prevent  the  service  of  the  writ,  but  in  the  end 
the  federal  marshal,  "  with  some  firmness,  much  composure,  and  great  ad- 
dress," succeeded,  as  Professor  Jameson  says,  in  entering  the  house,  afterward 
humorously  called  Fort  Rittenhouse,  and  serving  the  process.2 

It  is  easy  to  decry  the  weakness  of  the  Confederation  because  of  its  failure 
to  execute  its  judgment  in  the  case  of  the  Active,  but  it  should  be  borne  in 
mind  that  the  Congress  was  a  Congress  of  sovereign,  free  and  independent 
States,  which  are  loath  to  allow  the  use  of  force  against  themselves,  even  in  the 
administration  of  justice  —  which  appears  also  to  be  a  characteristic  of  the 
American  States  composing  the  American  Union;  for,  in  the  procedure  and 
practice  of  the  Supreme  Court,  States  of  the  American  Union  have  not  been 
forced  before  the  court  as  defendants  to  take  part  in  the  trial  of  a  case,  nor 
has  the  execution  of  a  judgment  of  that  august  tribunal  against  them  been 
compelled  by  force. 

The  moral  of  the  Active  was  not  lost  upon  the  Congress,  nor  did  the  peti- 
tion of  the  Philadelphian  merchants  and  citizens  fall  upon  deaf  ears.     On 

1  See  The  United  States  v.  Judge  Peters,  5  Cranch,  115. 

-  When  the  District  Court  proceeded  to  execute  this  mandate,  the  Governor  issued  orders  to 
General  Bright,  "  directing  him  to  call  out  a  portion  of  the  militia  in  order  to  protect  the  per- 
sons and  property  of  the  representatives  of  Rittenhouse  against  any  process  issued  by  the  Dis- 
trict Court  of  the  United  States  in  pursuance  of  this  mandamus.  At  first  the  marshal  was 
prevented  from  serving  the  process  by  soldiers  under  the  command  of  Bright,  but  subsequently, 
eluding  their  vigilance,  he  succeeded  in  taking  into  custody  one  of  the  defendants.  A  writ  >i 
habeas  corpus,  sued  out  on  behalf  of  the  prisoner,  was,  however,  discharged  by  Chief  Justice 
Tilghman,  and  subsequently  General  Bright  with  others  were  indicted  in  the  Circuit  Court  of 
the  United  States  for  obstructing  the  process  of  the  District  Court.  Mr.  Justice  Washington 
presided  at  the  trial,  which  resulted  in  a  verdict  of  guilty.  The  prisoners  were  sentenced  to 
be  imprisoned,  and  to  pay  a  fine:  but  were  immediately  pard  n  by  the  President  of  the 
United   States.     Olmsted's   Ce.se.    Brightly's    Rep..    1. 

'*  This  appears  to  have  been  the  first  case  in  which  the  supremacy  of  the  Constitution  was 
enforced  by  judicial  tribunals  against  the  assertion  of  State  authority."  (Mr.  Justice  Stanley 
Matthew's  Address  before  the  Vale  Law  School,  June  26,  1888,  pp.  19-20.) 


THE    FIRST    PERMANENT   TRIBUNAL   OF   THE   STATES  223 

May  22,  1779,  the  very  day  on  which  the  petition  had  been  read,  a  resolution 
was  introduced,  recommending  "  that  each  state  pass  an  act  empowering  Con- 
gress, in  advance  of  the  ratification  of  the  Articles  of  Confederation,  to  erect 
a  permanent  court  of  appeals ;  but  the  resolution  does  not  appear  to  have 
passed,"  for  the  reason,  suggested  by  Professor  Jameson,  from  whom  the 
above  passage  is  quoted,  that  "  probably  Congress  felt  that  they  would  be 
taking  a  stronger  position  if  they  assumed  the  existence  of  such  power,  as 
derived  from  their  '  supreme  sovereign  power  of  war  and  peace,'  in  much  the 
same  way  as  the  power  to  hear  such  appeals  by  committee  of  Congress  had 
been;  probably  also  it  despaired  of  securing  such  action  on  the  part  of  all 
thirteen  of  the  states."  1 

But  indeed,  even  earlier,  the  advisability  of  a  court  had  been  agitated,  for 
on  August  5,  1777,  it  was  "  Resolved,  That  Thursday  next  be  assigned  to  take 
into  consideration  the  propriety  of  establishing  the  Court  of  Appeals."  Thurs- 
day came,  but  the  court  did  not.  The  matter  was  postponed.  In  December 
of  1779,  following  the  Philadelphian  petition,  an  ordinance  was  drafted  for  a 
permanent  court.  As  amended,  it  was  passed  on  January  15,  1780,  in  the 
following  form,  a  year  in  advance  of  the  definitive  adoption  of  the  Articles 
of  Confederation : 

Resolved,  That  a  court  be  established  for  the  trial  of  all  appeals  from 
the  Courts  of  Admiralty  in  these  United  States,  in  cases  of  capture,  to  con- 
sist of  three  judges  appointed  and  commissioned- by  Congress,  either  two  oi 
whom,  in  the  absence  of  the  other,  to  hold  the  said  court  for  the  despatch 
•  of  business ;  that  the  said  court  appoint  their  own  register ;  that  the  trials 
therein  be  according  to  the  usage  of  nations,  and  not  by  jury.2 

It  was  also  resolved: 

That  the  said  judges  hold  their  first  session  as  soon  as  may  be  at  Phila- 
delphia, and  afterwards  at  such  times  and  places  as  they  shall  judge  most 
conducive  to  the  public  good,  so  that  they  do  not  at  any  time  sit  further 
eastward  than  Hartford  in  Connecticut,  or  southward  than  Williamsburg  in 
Virginia.3 

On  January  22d  the  Congress  chose  as  the  three  judges  of  the  court,  George 
Wythe  of  Virginia,  William  Paca  of  Maryland,  and  Titus  Hosmer  of  Con- 
necticut—  an  admirable  personnel.  Mr.  Wythe  declining,  Cyrus  Griffin  of 
Virginia  was  elected  in  his  place  on  April  28th.  Mr.  Paca  accepted  on  the 
9th  of  February,  Mr.  Hosmer  and  Mr.  Griffin  on  the  4th  of  May.4 

The  act  of  January  15,  1780,  creating  the  court,  did  not  provide  for  the 
transfer  to  it  of  the  cases  pending  before  the  committee.  On  May  9th  the 
case  of  Bragg  v.  The  Sloop  Dove  5  was  brought  on  appeal  before  Congress. 

1  Jameson,  Essays,  p.  27.  *  Ibid.,  pp.  xxv-xxvi. 

2  131  U.  S.,  App.,  p.  xxv.  &Ibid.,  p.  xliv. 
a  Ibid. 


224  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

It  was  referred  to  the  new  court  and  on  May  24th  Congress  resolved  "  that 
the  stile  of  the  Court  of  Appeals  appointed  by  Congress  be  '  the  Court  of 
Appeals  in  cases  of  capture; '  that  appeals  from  the  Courts  of  Admiralty  in 
the  respective  States  be,  as  heretofore,  demanded  within  five  days  after  defini- 
tive sentence,  and  in  future  such  appeals  be  lodged  with  the  register  of  the 
Court  of  Appeals  in  cases  of  capture  within  forty  days  thereafter;"  and 
"  that  all  matters  respecting  Appeals  in  cases  of  capture  now  depending  before 
Congress,  or  the  Commissioners  of  Appeals,  be  referred  to  the  newly  erected 
Court  of  Appeals,  to  be  there  adjudged  and  determined  according  to  law;  and 
that  all  papers  touching  appeals  in  cases  of  capture  lodged  in  the  office  of  the 
Secretary  of  Congress,  be  delivered  to  and  lodged  with  the  register  of  the 
Court  of  Appeals."  1  Thus  the  first  permanent  tribunal  of  these  United 
States  was  established. 

Mr.  Davis,  whose  article  entitled  The  Federal  Courts  Prior  to  the  Adop- 
tion of  the  Constitution  has  largely  served  as  the  basis  for  the  above  re- 
marks, gives  the  following  analysis  of  the  work  of  the  committees  and  of  the 
court  of  appeals : 

Sixty-four  cases  in  all  were  submitted  to  the  committees  of  Congress,  of 
which  forty-nine  were  decided  by  them,  four  seem  to  have  disappeared,  and 
eleven  went  over  to  the  Court  of  Appeals  for  decision.  Fifty-six  cases  in 
all,  including  the  eleven  which  went  over,  were  submitted  to  the  Court  of 
Appeals,  and  all  were  disposed  of.  Appeals  were  heard  from  every  mari- 
time State  except  New  York.  None  came  from  that  State;  doubtless  be- 
cause its  maritime  counties  were  occupied  by  the  enemy  from  the  autumn 
of  1776  to  the  end  of  the  war.2 

After  examining  the  records  of  the  committee  and  of  the  court  of  appeals, 
and  enumerating  the  cases  in  which  the  court  of  appeals  filed  written  opinions, 
Mr.  Davis  thus  closes  his  account  of  the  cases3  determined  on  appeal  by  the 
Congress,  its  permanent  committee,  and  the  federal  Court  of  Appeals : 

They  were  properly  placed  in  the  volumes  which  contain  the  commence- 
ment of  the  series  of  Reports  of  the  Supreme  Court  of  the  United  States; 
for  the  court  from  which  they  proceeded  was  in  its  day  the  highest  court 
in  the  country,  and  the  only  appellate  tribunal  with  jurisdiction  over  the 
whole  United  States.4 

1 131  U.  S.,  App.,  p.  xxvi. 

2  Ibid.,  p.  xxxiv. 

3  So  far  as  appears  by  these  papers,  no  written  reports  in  the  nature  of  opinions  were  made 
by  the  committees.  The  Court  of  Appeals  filed  only  eight  opinions,  all  of  which  are  reported 
in  2  Dall.  1^42,  under  the  general  title  of  "  Federal  Court  of  Appeals."  These  opinions  were 
delivered  in,  (1)  The  Resolution,  p.  1;  and  (2)  5.  C,  on  rehearing,  p.  19;  date  of  lodgment 
not  known;  final  decree  January  24,  1782; — (3)  The  Erstern,  p.  33;  lodged  January  11,  1781; 
final  decree  February  5,  1782:- — (4)  The  Gloucester,  p.  36;  date  of  lodgment  not  known; 
final  decree  February  5,  1782: — (5)  The  Squirrel,  p.  40.  see  No.  90  post  in  table: — (6)  The 
Speedwell,  p.  40;  lodged  June  17,  1783;  decided  May  24,  1784:— (7)  Luke  v.  Hulbert,  p.  41; 
no  papers  on  file: — (8)  The  Experiment  v.  The  Chester,  p.  41;  referred  by  Congress  by  the 
resolution  of  July  24,  1786,  already  spoken  of;  decided  May  1,  1787.     (Davis'  note,  p.  xxxv.) 

4  Ibid.,  p.  xxxv. 


THE   FIRST    PERMANENT   TRIBUNAL   OF   THE    STATES  225 

As  to  the  influence  of  the  Court  of  Appeals,  which  went  out  of  existence  two 
days  after  the  meeting  of  the  memorable  convention,  which,  as  Professor 
Jameson  says,  "  provided  the  United  States  with  a  more  comprehensive  and 
more  effective  judiciary,"  and  its  importance  in  the  development  of  a  perma- 
nent judiciary  Professor  Jameson  writes: 

However  this  may  be,  it  can  not  be  doubted  that  the  Court  of  Appeals, 
though,  as  remarked  by  counsel  in  Jennings  v.  Carson,  "  unpopular  in  those 
states  which  were  attached  to  trial  by  jury,"  had  an  educative  influence  in 
bringing  the  people  of  the  United  States  to  consent  to  the  establishment  of 
such  a  successor.  It  could  hardly  be  that  one  hundred  and  eighteen  cases, 
though  all  in  one  restricted  branch  of  judicature,  should  be  brought  by 
appeal  from  state  courts  to  a  federal  tribunal,  without  familiarizing  the 
public  mind  with  the  complete  idea  of  a  superior  judicature,  in  federal 
matters,  exercised  by  federal  courts.  The  Court  of  Appeals  in  Cases  of 
Capture  may  therefore  be  justly  regarded,  not  simply  as  the  predecessor, 
but  as  one  of  the  origins,  of  the  Supreme  Court  of  the  United  States.1 

1  J.  Franklin  Jameson,  Essays,  pp.  43-4. 


XI 
TEMPORARY  JUDICIAL  COMMISSIONS 

Difficulties  and  disputes  that  may  arise  between  the  subjects  of  the  King  and  the  in- 
habitants of  the  Swiss  Cantons,  shall  be  settled  by  the  judgment  of  four  men  of  standing, 
two  of  whom  shall  be  named  by  each  party;  which  four  arbitrators  shall  hear,  in  an  ap- 
pointed place,  the  parties  or  their  attorneys ;  and,  if  they  shall  be  divided  in  opinion,  there 
shall  be  chosen  from  the  neighboring  countries  an  unbiassed  man  of  ability,  who  shall 
join  with  the  arbitrators  in  determining  the  question.  If  the  matter  in  dispute  is  between 
a  subject  of  the  Cantons  and  Leagues  and  the  King  of  France,  the  Cantons  will  examine 
the  demand,  and,  if  it  is  well  founded,  they  will  present  it  to  the  King;  but,  if  the  King  is 
not  satisfied  with  it,  they  may  call  the  King  before  the  arbitrators,  who  shall  be  selected 
from  among  impartial  judges  of  the  countries  of  Coire  or  of  Valois,  and  whatever  shall 
be  decided  by  the  aforesaid  judges,  by  a  judicial  or  amicable  sentence,  shall  be  inviolably 
observed  without  any  revocation.  (Treaty  of  Perpetual  Peace  between  Prance  and  the 
Swiss  Cantons  and  their  Allies,  November  29,  1516,  M.  de  Flassan,  Histoire  Gcnerale  et 
Raisonnce  de  la  Diplomatic  Francaise,  Depuis  la  fondation  de  la  monarchie,  jusgu'd  la 
fin  du  regne  de  Louis  XVI,  Vol.  I,  1S09,  pp.  307-308,  English  translation  by  John  Bassctt 
Moore,  History  and  Digest  of  the  International  Arbitrations  to  which  the  United  States 
has  been  a  Party,  Vol.  V,  1898,  p.  4830.) 

Arbitration  is  a  method  very  reasonable,  and  very  conformable  to  the  law  of  nature, 
in  determining  all  differences  that  do  not  directly  interest  the  safety  of  the  nation. 
Though  the  strict  right  may  be  mistaken  by  the  arbitrator,  it  is  still  more  to  be  feared  that 
it  will  be  overwhelmed  by  the  fate  of  arms.  The  Swiss  have  had  the  precaution,  in  all 
their  alliances  among  themselves,  and  even  in  those  they  have  contracted  with  the  neigh- 
bouring powers,  to  agree  before-hand,  on  the  manner  in  which  their  disputes  were  to  be 
submitted  to  arbitrators,  in  case  they  could  not  adjust  them  in  an  amicable  manner.  This 
wise  precaution  has  not  a  little  contributed  to  maintain  the  Helvetic  Republic  in  that 
flourishing  state  which  secures  its  liberty,  and  renders  it  respectable  throughout  Europe. 
(.1/.  de  Vattel,  The  Law  of  Nations;  or  Principles  of  the  Law  of  Nature:  Applied  to  the 
Conduct  and  Affairs  of  Nations  and  Sovereigns,  1758,  Translated  from  the  French,  Vol.  I, 
1760,  pp.  244-245-) 

XXVIII.  Recites  a  seisure  and  detainer  of  English  effects  in  the  dominions  of  the 
King  of  Denmark,  since  the  18th  of  May,  1652.  The  States  hereby  oblige  themselves  to 
make  the  same  good  to  the  owners,  to  pay  5000  pounds  English,  to  answer  the  expence  of 
a  proper  enquiry,  and  20,000  rixdollars  to  whom  his  Highness  shall  nominate  immediately; 
which  are  to  be  deducted  out  of  the  gross  sum  to  be  awarded,  and  to  enter  into  bonds  of 
arbitration,  in  the  penalty  of  140.000,  by  proper  persons  in  London,  to  answer  the  award. 

XXX.  That  four  commissioners  shall  be  named  on  both  sides  to  meet  at  London,  the 
19th  of  May  next,  who  will  be  authorised  to  examine  the  injuries  and  losses  in  the  year 
1611,  and  after  to  the  18th  of  May  1652,  as  in  the  East  Indies,  Greenland,  Muscovy,  Brasil, 
&c.  That  if  the  said  differences  be  not  adjusted  in  three  months,  to  be  computed  from  the 
said  18th  day  of  May,  in  such  case  the  same  shall  be  submitted  to  the  arbitration  of  the 
Swiss  Cantons,  who  shall  delegate  commissioners  for  that  purpose,  and  shall  give  judgment 
within  six  months;  within  which  time  whatever  the  majority  of  such  commissioners  deter- 
mine shall  be  binding  to  both  parties,  and  duly  performed.  (Treaty  of  Peace  and  Union 
between  Oliver  Cromwell,  as  Protector  of  England,  and  the  United  Provinces  of  the  Neth- 
erlands, at  Westminster,  April  5th,  1645,  Charles  Jcnkinson,  A  Collection  of  all  tlie  Treaties 
of  Peace,  Alliance,  and  Commerce,  between  Great-Britain  and  other  Powers,  from  the 
Treatv  signed  at  Munster  in  1648,  to  the  Treaties  signed  at  Paris  in  1783,  Vol.  I,  1785,  pp. 
47-4S.) 

XXIV.  That  the  debts  due  to  the  English  from  the  King,  on  account  of  the  previous 
sequestration  of  their  effects,  shall  be  discharged  within  two  years,  And  the  recognizances 
made  to  the  King  or  any  of  his  subjects  by  the  English  shall  be  cancelled  and  rescinded. 

226 


TEMPORARY    JUDICIAL    COMMISSIONS  227 

XXV.  The  adjusting  of  all  matters  in  dispute  shall  be  referred  to  the  arbitration  of 
Dr.  Walter  Walker,  John  Crowther,  Dr.  Jeronimus  a  Silva,  secretary  of  the  embassy,  and 
Francis  Ferreira  Rabello,  agent  thereof,  who  shall  sit  at  London  the  20th  of  July  next, 
O.  S.  who  shall  deliver  their  sentence  on  or  before  the  first  day  of  September  next.  And 
the  same  being  then  undetermined,  shall  afterwards  be  referred  entirely  to  the  Protector's 
consul,  whose  award  shall  be  final  and  decisive:  and  what  shall  on  their  decree  be  found 
justly  due,  shall  be  paid  by  an  allowance  or  remittance  of  one  moiety  of  the  duties  usually 
paid  until  the  sum  awarded  be  fully  satisfied. 

The  three  last  articles  are  general  confirmations  of  the  previous  particulars,  and  limits 
the  ratification  to  six  months.  (Treaty  of  Peace  and  Alliance  between  Oliver  Cromwell, 
Protector  of  England,  and  John  IV.  King  of  Portugal,  made  at  Westminster,  July  10,  1654, 
Charles  Jenkinson,  A  Collection  of  all  the  Treaties  of  Peace,  Alliance,  and  Commerce, 
between  Great-Britain  and  other  Powers,  From  the  Treaty  signed  at  Munsier  in  1648,  to 
the  Treaties  signed  at  Paris  in  1783,  Vol.  I,  1785,  pp.  74-75.) 

XXIV.  Whereas  since  the  year  1640  many  prizes  have  been  taken  on  both  sides,  com- 
missioners shall  be  appointed  to  settle  the  same  at  London,  and  if  they  do  not  determine  in 
six  months  and  a  fortnight,  the  city  of  Hamburg  shall  be  desired  to  delegate  commission- 
ers, whose  arbitration  shall  be  final,  and  their  award  made  within  four  months ;  but  if 
neither  shall  make  an  award,  no  force  shall  be  used  on  either  side  until  after  the  expira- 
tion of  four  months  more. 

XXV.  The  right  of  either  to  the  three  forts  of  Pentacost,  St.  John,  and  Port  Royal  in 
America,  shall  be  determined  by  the  same  commissioners.  (Treaty  of  Peace  between 
Louis  XIV.  King  of  France  and  Navarre,  and  the  Lord  Protector  of  the  Republic  of 
England,  Scotland,  and  Ireland,  at  Westminster,  November  3,  1655,  Charles  Jenkinson,  A 
Collection  of  all  the  Treaties  of  Peace,  Alliance,  and  Commerce,  between  Great-Britain  and 
Other  Powers,  from  the  Treaty  signed  at  Munstcr  in  164S,  to  the  Treaties  signed  at  Paris 
in  17S3.  Vol.  I,  17S5,  pp.  84-85.) 

VII.  Relates  to  the  manner  of  adjusting  differences  and  captures  of  either  side,  ac- 
cording to  the  tenor  of  the  XHIth  article  of  the  treaty  of  Upsal,  and  is  only  a  repetition 
thereof,  and  an  agreement,  in  case  of  the  same  not  being  affected  for  a  future  convention. 
(Treaty  between  Charles  Gustavus.  Kino  of  Sweden,  and  Oliver  Cromwell,  Protector  of 
England,  whereby  the  Treaty  of  Alliance  made  between  the  said  States.  April  11,  1654.  is 
confirmed  and  explained.  Done  at  Westminster,  July  15th.  and  the  Convention  annexed 
July  17,  1656.  Charles  Jenkinson,  A  Collection  of  all  the  Treaties  of  Peace,  Alliance,  and 
Commerce  between  Great-Britain  and  other  Powers,  from  the  Treaty  signed  at  Munstcr  in 
1648,  to  the  Treaties  signed  at  Paris  in  17S3,  Vol.  I,  1785,  p.  op.) 

The  United  States  in  Congress  assembled  shall  also  be  the  last  resort  on  appeal  in  all  dis- 
putes and  differences  now  subsisting  or  that  hereafter  may  arise  between  two  or  more 
States  concerning  boundary,  jurisdiction  or  any  other  cause  whatever;  which  authority 
shall  always  be  exercised  in  the  manner  following.  Whenever  the  legislative  or  executive 
authority  or  lawful  agent  of  any  State  in  controversy  with  another  shall  present  a  petition 
to  Congress,  stating  the  matter  in  question  and  praying  for  a  hearing,  notice  thereof  shall 
be  given  by  order  of  Congress  to  the  legislative  or  executive  authority  of  the  other  State 
in  controversy,  and  a  day  assigned  for  the  appearance  of  the  parties  by  their  lawful  agents, 
who  shall  then  be  directed  to  appoint  by  joint  consent,  commissioners  or  judges  to  con- 
stitute a"  court  for  hearing  and  determining  the  matter  in  question:  but  if  they  can  not 
agree,  Congress  shall  name  three  persons  out  of  each  of  the  United  States,  and  from  the 
list  of  such  persons  each  party  shall  alternately  strike  out  one,  the  petitioners  beginning, 
until  the  numbers  shall  be  reduced  to  thirteen;  and  from  that  number  not  less  than  seven, 
nor  more  than  nine  names  as  Congress  shall  direct,  shall  in  the  presence  of  Congress  be 
drawn  out  by  lot,  and  the  persons  whose  names  shall  be  so  drawn  or  any  five  of  them, 
shall  be  commissioners  or  judges,  to  hear  and  finally  determine  the  controversy,  so  always 
as  a  major  part  of  the  judges  who  shall  hear  the  cause  shall  agree  in  the  determination: 
and  if  either  party  shall  neglect  to  attend  at  the  day  appointed,  without  showing  reasons, 
which  Congress  shall  judge  sufficient,  or  being  present  shall  refuse  to  strike,  the  Congress 
shall  proceed  to  nominate  three  persons  out  of  each  State,  and  the  Secretary  of  Congress 
shall  strike  in  behalf  of  such  party  absent  or  refusing;  and  tha  judgment  and  sen- 
tence of  the  court  to  be  appointed,  in  the  manner  before  prescribed,  shall  be  final  and  con- 
clusive; and  if  any  of  the  parties  shall  refuse  to  submit  to  the  authority  of  such  court,  or 
to  appear  or  defend  their  claim  or  cause,  the  court  shall  nevertheless  proceed  to  pronounce 
sentence,  or  judgment,  which  shall  in  like  manner  be  final  and  decisive,  the  judgment  or 
sentence  and  other  proceedings  being  in  either  case  transmitted  to  Congress,  and  lodged 
among  the  acts  of  Congress  for  the  security  of  the  parties  concerned :  provided  that  every 


228  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

commissioner,  before  he  sits  in  judgment,  shall  take  an  oath  to  be  administered  by  one  of 
the  judges  of  the  supreme  or  superior  court  of  the  State  where  the  cause  shall  be  tried, 
"  well  and  truly  to  hear  and  determine  the  matter  in  question,  according  -to  the  best  of  his 
judgment,  without  favour,  affection  or  hope  of  reward:"  provided  also  that  no  State  shall 
be  deprived  of  territory  for  the  benefit  of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil  claimed  under  different  grants  of 
two  or  more  States,  whose  jurisdiction  as  they  may  respect  such  lands,  and  the  States 
which  passed  such  grants  are  adjusted,  the  said  grants  or  either  of  them  being  at  the 
same  time  claimed  to  have  originated  antecedent  to  such  settlement  of  jurisdiction,  shall 
on  the  petition  of  either  party  to  the  Congress  of  the  United  States,  be  finally  determined 
as  near  as  may  be  in  the  same  manner  as  is  before  prescribed  for  deciding  disputes  re- 
specting territorial  jurisdiction  between  different  States.  (Articles  of  Confederation,  1777, 
Article  IX,  paragraph  2.    Revised  Statutes  of  the   United  States,  1878,  pp.  9-10.) 

The  agents  attending,  the  Court  pronounced  the   following  sentence  or  judgment: 

This  cause  has  been  well  argued  by  the  learned  counsel  on  both  sides. 

The  court  are  now  to  pronounce  their  sentence  or  judgment. 

We  are  unanimously  of  opinion,  that  the  state  of  Connecticut  has  no  right  to  the  lands 
in  controversy. 

We  are  also  unanimously  of  opinion,  that  the  jurisdiction  and  pre-emption  of  all  the 
territory  lying  within  the  charter  boundary  of  Pennsylvania,  and  now  claimed  by  the  state 
of  Connecticut,  do  of  right  belong  to  the  state  of  Pennsylvania.  (State  of  Pennsylvania  v. 
State  of  Connecticut,  Court  of  Commissioners  Under  9th  of  Articles  of  Confederation, 
Journals  of  the  American  Congress,  edition  of  1823,  Vol.  IV,  p.  140,  decided  December 
30,  17S2.) 

The  great  cause  between  Connecticut  and  Pennsylvania  has  been  decided  in  favor  of 
the  latter.  It  is  a  singular  event.  There  are  few  instances  of  independent  states  submit- 
ting their  cause  to  a  court  of  justice.  The  day  will  come  when  all  disputes  in  the  great 
republic  of  Europe  will  be  tried  in  the  same  way,  and  America  be  quoted  to  exemplify  the 
wisdom  of  the  measure.  (Extract  from  letter  of  Robert  R.  Livingston,  Secretary  of  For- 
eign Affairs,  to  La  Fayette.  January  10,  1783.  Francis  Wharton,  The  Revolutionary  Diplo- 
matic Correspondence  of  the  United  States,  Vol.  VI,  1889,  p.  202.) 


CHAPTER  XI 

TEMPORARY    JUDICIAL    COMMISSIONS 

But  the  Court  of  Prize  was  neither  the  most  interesting  nor  the  most  im- 
portant judicial  organization,  either  for  the  people  of  the  United  States  or  for 
the  world  at  large.  But  it  was  one  of  the  origins  of  the  Supreme  Court.  The 
other  origin  which  is  likely  to  prove  further  that  the  Revolutionary  statesmen, 
as  well  as  the  fathers  of  the  Constitution,  were  benefactors  of  their  kind,  was 
the  machinery  devised  for  the  adjustment  of  quarrels  between  the  States  bv 
means  of  temporary  commissions : 

The  United  States  in  Congress  assembled  shall  also  be  the  last  resort  on 
appeal  in  all  disputes  and  differences  now  subsisting  or  that  hereafter  may 
arise  between  two  or  more  States  concerning  boundary,  jurisdiction  or  any 
other  cause  whatsoever ;  .  .  . 

All  controversies  concerning  the  private  right  of  soil  claimed  under  differ-  ^f^™ 
ent  grants  of  two  or  more  States,  whose  jurisdictions  as  they  may  respect  Commissions 
such  lands,  and  the  States  which  passed  such  grants  are  adjusted,  the  said 
grants  or  either  of  them  being  at  the  same  time  claimed  to  have  originated 
antecedent  to  such  settlement  of  jurisdiction,  shall  on  the  petition  of  either 
party  to  the  Congress  of  the  United  States,  be  finally  determined  as  near  as 
may  be  in  the  same  manner  as  is  before  prescribed  for  deciding  disputes 
respecting  territorial  jurisdiction  between  different  States.1 

The  Articles  of  Confederation  apparently  considered  the  Congress  as 
the  successor  of  the  King  in  Council.  They  authorized  it  therefore 
to  direct  the  agents  of  the  States  in  controversy  to  appoint  commissioners 
or  judges  to  constitute  a  court  for  hearing  and  determining  the  matter  in 
question.  Failing  their  agreement.  Congress  was  authorized  to  "  name 
three  persons  out  of  each  of  the  United  States,"  that  is  to  say,  thirty-nine  in 
all,  from  which  list  the  agents  of  the  parties,  beginning  with  the  defendant, 
should  alternately  strike  a  name  until  thirteen  were  left,  from  which  seven  or 
nine,  in  the  direction  of  Congress,  should  be  drawn  by  lot,  of  whom  the  per- 
sons whose  names  were  drawn,  or  any  five  of  them,  should  be  commissioners 
or  judges  of  the  commission  charged  with  the  determination  of  the  dispute. 
Upon  the  absence  of  one  or  the  other  party,  or  the  refusal  of  one  of  the  parties 
present  "  to  strike,"  the  secretary  of  the  Congress  was  to  strike  in  lieu  thereof 
and  the  commissioners  were  thereupon  to  be  selected  in  the  manner  above 

1  Article  IX,  Articles  of  Confederation,  1777. 

229 


230  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

described.  The  commissioners  thus  appointed  formed  the  court  which  was  to 
assume  jurisdiction  of  the  dispute,  even  although  one  party  or  the  other  might 
refuse  to  submit  the  case  or  appear  or  defend  the  claim.  The  court  thus  con- 
stituted was  to  proceed  to  pronounce  final  sentence  or  judgment,  which,  to- 
gether with  the  other  proceedings,  was  to  be  transmitted  to  the  Congress  and 
by  it  filed  for  the  security  of  the  parties  concerned.  Each  commissioner  was 
to  take  an  oath  before  a  court  of  record  in  the  State  in  which  the  cause  was  to 
be  tried,  to  decide  the  controversy  "  according  to  the  best  of  his  judgment, 
without  favor,  affection,  or  hope  of  reward."  And  no  State  was  to  be  "  de- 
prived of  territory  for  the  benefit  of  the  United  States." 

It  was  natural  that  the  States  which,  as  has  been  pointed  out,  had  renounced 
the  right  to  enter  into  compacts  and  to  conclude  agreements,  which  maintained 
armaments  merely  for  defensive  purposes,  and  which  had  renounced  the  right 
to  resort  to  war  against  one  another,  should  have  found  it  necessary  to  devise 
a  method  of  settling  the  disputes  which  had  frequently  arisen  between  and 
among  them,  and  which  were  certain  to  arise  again  in  the  matter  of  boundaries. 
It  was  also  natural  that  the  Congress  should  take  advantage  of  this  certainty 
to  provide  a  method  for  settling  boundary  disputes  which  might  arise 
between  the  States.  It  was  further  natural  that  they  should  adopt  the 
influence  method  of  the  Privy  Council,  which  either  settled  the  disputes  itself  or  referred 

of  Privy 

Council  them  to  committees  or  to  courts,  as  the  case  might  be,  and  that  the  States 

should  adapt  the  machinery  at  hand  to  their  own  circumstances  and  needs. 
Professor  Jameson  has  called  attention  to  the  striking  resemblance  between 
the  method  of  the  Articles  of  Confederation  and  that  devised  by  Grenville's 
Act  of  1770  for  the  trial  of  disputed  elections.  His  language  is  so  in  point, 
and  is  so  capable  of  a  larger  application,  that  it  is  quoted  in  full : 

It  seems  obvious  that  we  have  here  a  reproduction  of  the  machinery  pro- 
vided by  Mr.  Grenville's  famous  Act  of  1770  for  the  trial  of  disputed  elec- 
tions to  the  House  of  Commons.  Up  to  that  time,  disputed  elections  had  for 
nearly  a  century  been  passed  upon  by  the  whole  House.  The  natural  result 
of  such  a  procedure  was  a  scandalous  disregard  of  justice,  those  contestants 
who  belonged  to  the  majority  party  being  uniformly  admitted,  their  com- 
petitors as  uniformly  rejected.  To  remedy  this  abuse,  Mr.  Grenville's  act 
provided  that  forty-nine  members  should  be  chosen  by  ballot,  and  that  from 
this  list  the  petitioner  and  the  sitting  member  should  strike  out  names  alter- 
nately until  the  number  was  reduced  to  thirteen, —  a  process  which  later 
became  known,  in  the  slang  of  the  House,  as  "  knocking  out  the  brains  of  the 
committee,"  each  contestant  excluding  any  able  man  likely  to  assist  the  cause 
of  his  opponent.  These  thirteen,  with  an  additional  member  nominated  by 
each  contestant,  constituted  the  authoritative  tribunal.  The  act,  celebrated 
at  the  time,  was  of  course  perfectly  well  known  to  lawyers  in  America  six 
years  after  its  passage.  It  seems  plain  that,  with  the  natural  substitution  of 
thirty-nine  for  forty-nine,  we  have,  in  this  peculiar  process  established  shortly 
before  in  England,  the  model  on  which  Congress  framed  its  scheme  for  con- 


TEMPORARY    JUDICIAL    COMMISSIONS  231 

stituting  temporarily  a   judiciary  body  when   one  was   required   for   land 
disputes.1 

The  history  of  the  proceedings  tinder  this  portion  of  the  ninth  Article  of 
Confederation  is  quickly  told.  One  commission  or  court  was  constituted  by 
the  agents  of  the  parties  under  the  article,  and  this  commission  decided  the 
one  case  which  the  article  has  to  its  credit.  A  temporary  tribunal  was  formed 
in  three  additional  instances,  in  one  of  which  the  agents  of  the  parties  were 
unable  to  agree  upon  the  personnel,  and  resort  was  therefore  had  to  the  method 
of  striking  provided  by  the  article.2  In  these  three  instances  the  cases  were 
settled  out  of  court  by  the  parties  themselves.  Petitions  to  form  tribunals 
were  presented  to  Congress  in  other  cases,  but  no  courts  were  created,  and 
upon  the  dissolution  of  the  Confederation  some  eleven  boundary  disputes  were 
outstanding  and  unsettled.3  The  one  cause  actually  decided  by  commissioners 
or  judges  in  the  manner  provided  by  the  ninth  article,  is,  however,  a  very 
famous  case,  in  which  blood  had  flowed,  which  of  itself  was  sufficient  to 
show  the  disadvantages  of  the  old  method,  or  rather  of  no  method,  and  the 
possibilities  of  the  new  system. 

Upon  the  signature  of  the  Articles  of  Confederation  by  Maryland  on  the  yencnnecitcu 
1st  day  of  March,  1781,  they  became  the  law  of  the  land,  and  shortly  there- 
after Pennsylvania  took  advantage  of  the  ninth  of  the  articles  in  order  to  settle 
a  dispute  with  Connecticut  concerning  a  large  strip  of  territory  on  the  east 
bank  of  the  Susquehanna  River,  and  which  today  forms  the  County  of  Luzerne 
in  the  State  of  Pennsylvania.  As  the  matter  is  thus  important,  and  the  details 
of  the  procedure  interesting,  some  relevant  passages  are  quoted  from  the  docu- 
ments in  this  case.  The  Journal  of  Congress  on  November  3,  1781,  contains 
the  following  entry : 

A  petition  from  the  supreme  executive  council  of  the  Commonwealth  of 
Pensylvania  was  read,  stating  a  matter  of  dispute  between  the  said  State 
and  the  State  of  Connecticut,  respecting  sundry  lands  lying  on  the  east  branch 
of  the  River  Susquehanna,  and  praying  a  hearing  in  the  premises,  agreeably 
to  the  9th  article  of  the  Confederation.4 

On  the  14th  of  the  same  month,  Congress  assigned  the  fourth  Monday  in  the 
following  June  for  the  appearance  of  the  States  by  their  lawful  agents,  and 
issued  notice  thereof  in  the  following  form  to  the  States  in  controversy: 

To  the  legislative  authority  of  the  State  of  Connecticut  [Pennsylvania]  : 

1  J.    Franklin    Jameson,   Essays   in    the    Constitutional   History    of    the    United    States, 
pp.  44— S. 

2  J.  C.  Bancroft  Davis,  Federal  Courts  Prior  to  the  Adoption  of  the  Constitution,  131 
U.  S.,  Appendix,  p.  lxiii. 

3  Ibid.,  p.  xxxiv. 

4  Journals  of  the  Continental  Congress,  Vol.  xxi,  p.  1092. 


232  THE   UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

It  is  hereby  made  known,  that  pursuant  to  the  ninth  article  of  the  Con- 
federation, the  supreme  executive  council  of  the  State  of  Pensylvania,  have 
presented  a  petition  to  Congress,  stating  that  a  controversy  has  long  subsisted 
between  the  said  State  of  Pensylvania,  and  the  State  of  Connecticut,  respect- 
ing sundry  lands  lying  within  the  northern  boundary  of  the  said  State  of 
Pensylvania,  and  praving  for  a  hearing  in  pursuance  of  the  ninth  article  of 
the  Confederation ;  and  that  the  4th  Monday  in  June  next,  is  assigned  for  the 
appearance  of  the  said  States  of  Pensylvania  and  Connecticut,  by  their  law- 
ful agents,  at  the  place  in  which  Congress  shall  then  sit,  to  proceed  in  the 
premises  as  by  the  said  Confederation  is  directed.1 

On  the  appointed  day  the  States  appeared  by  their  agents:  for  Pennsyl- 
vania, Messrs.  William  Bradford,  Joseph  Reed,  James  Wilson  and  Jonathan 
Dickinson  Sergeant,  and  their  credentials  were  spread  upon  the  Journal.2 
For  Connecticut,  Eliphalet  Dyer  appeared  and  presented  credentials,  likewise 
spread  upon  the  Journal,  showing  the  appointment  as  duly  accredited  agents 
of  that  State,  Messrs.  Eliphalet  Dyer,  William  Samuel  Johnson  and  Jesse 
Root.3  On  June  27th  Connecticut  moved  to  postpone  the  proceedings  until 
"  after  the  termination  of  the  present  war."  4  This  motion  was  denied.  On 
the  16th  of  July  the  agents  of  the  two  States  were  directed  "  to  appoint,  by 
joint  consent,  commissioners  or  judges  to  constitute  a  court  for  hearing  and 
determining  the  matter  in  question,  agreeably  to  the  9th  Article  of  the  Con- 
federation." 5  The  agents  complied  with  this  direction  and,  on  August  12th, 
Congress  was  informed  by  a  paper  signed  by  the  agents  of  the  contending 
States,  and  spread  upon  the  Journal,  that  they  had  agreed  upon  William 
Whipple  of  New  Hampshire,  Major  General  Nathaniel  Greene  of  Rhode 
Island,  David  Brearley  and  William  Churchill  Houston  of  New  Jersey,  Cyrus 
Griffin  and  Joseph  Jones  of  Virginia,  and  John  Rutledge  of  South  Carolina, 
any  five  or  more  of  whom  were  to  constitute  the  court  and  to  have  authority 
to  proceed  and  to  determine  the  matter  and  difference  between  the  States.6 
It  was  further  agreed  by  and  between  the  agents  of  the  litigating  States  that 
the  court  should  assemble  at  Trenton,  N.  J.,  on  the  12th  day  of  November.7 
On  August  23,  1782,  the  agents  reported  to  Congress  that  General  Greene  could 
not  attend,  that  Mr.  Rutledge  had  declined,  and  that  they  had  therefore  chosen 
Thomas  Neilson  of  Virginia  and  Welcome  Arnold  of  Rhode  Island  in  their 
stead.  Congress  thereupon  directed  commissions  to  issue  to  the  judges  ac- 
cording to  the  amended  list,  and  on  the  28th  of  the  same  month  the  form  of 
commission  was  settled  and  spread  upon  the  Journal.8 

1  Journals  of  the  Continental  Congress,  Vol.  xxi.  p.  1116. 
-  Ibid..  Vol.  xxii,  p.  345.     Session  of  June  24,  1782. 

3  Ibid.,  p.  347. 

4  Ibid.,  p.  355. 

5  Ibid.,  p.  392. 

'..  Vol.  xxiii.  p.  461. 
'  Ibid.,  p.  529.     Session  of  August  23,  1782. 
s  Ibid.,  p.  533. 


TEMPORARY    JUDICIAL    COMMISSIONS  233 

It  was  finally  agreed  by  and  between  the  parties  litigant  that  the  court 
should  assemble  at  Trenton,  N.  J.,  on  the  12th  of  November  of  the  same  year. 
The  court  convened  on  the  day  assigned,  November  12th,  at  Trenton,  with 
only  Messrs.  Brearley  and  Houston  present.1  They  adjourned  from  day  to 
day  to  the  18th,  when  enough  members  being  present,  the  court  was  organized, 
with  Messrs.  Whipple,  Arnold,  Brearley,  Houston  and  Griffin  in  attendance 
as  members.  On  the  22d  of  the  month  the  agents  on  each  side  put  in  a 
written  brief,  showing  the  claims  of  their  respective  States,  based  in  each  case 
upon  charters  from  the  mother  country.  We  have  the  word  of  the  commis- 
sioners that  the  case  was  equally  well  argued  on  both  sides,  and  we  have  their 
unanimous  opinion  in  behalf  of  the  State  of  Pennsylvania —  for  the  commis- 
sioners had  agreed  that  the  minority  should  yield  to  the  majority,  so  that 
the  decision  might  be  unanimous,  and  in  framing  their  view  they  apparently 
heeded  the  sage  advice  of  my  Lord  Mansfield  to  a  lawyer  turned  judge  and 
not  very  well  grounded  in  the  law,  to  abstain  from  reasons  for  his  judgment. 
The  award  of  the  court  follows  in  full : 

The  court  met  —  Present  as  before. 

The  agents  attending,  the  Court  pronounced  the  following  sentence  or 
judgment : 

This  cause  has  been  well  argued  by  the  learned  counsel  on  both  sides. 

The  court  are  now  to  pronounce  their  sentence  or  judgment. 

We  are  unanimously  of  opinion,  that  the  state  of  Connecticut  has  no  right 
to  the  lands  in  controversy. 

We  are  also  unanimously  of  opinion,  that  the  jurisdiction  and  pre-emption 
of  all  the  territory  lying  within  the  charter  boundary  of  Pennsylvania,  and 
now  claimed  by  the  State  of  Connecticut,  do  of  right  belong  to  the  state  of 
Pennsylvania.2 

The  commissioners  were  of  the  opinion,  as  stated  in  a  communication  dated 
December  31,  1782,  addressed  to  John  Dickinson,  then  President  of  Pennsyl- 
vania, that  the  question  for  them  to  decide,  and  actually  decided  by  them,  was 
the  right  of  Pennsylvania  to  the  soil  in  its  title  of  sovereign,  and  that  the 
claims  of  individuals  to  the  soil  whether  based  upon  grants  from  Connecticut 
or  from  Pennsylvania  were  unaffected  by  the  decision.  The  Honorable  Cyrus 
Griffin,  the  fifth  member  of  the  court,  made  a  similar  statement  in  a  letter 
dated  September  15,  1796,  and  vouchsafed  the  following  interesting  informa- 
tion concerning  the  procedure  of  the  commissioners  in  the  trial  and  disposition 
of  the  case : 

Before  the  commissioners  determined  that  important  contest  between 
Pennsylvania  and  Connecticut,  it  was  agreed : 

1st.  That  the  reasons  for  the  determination  should  never  be  given. 

1  Davis,  Federal  Courts,  131   U.  S.,  Appendix,  p.  lv. 

2  Journals  of  the  American  Congress,  1823,  Vol.  IV,  p.  140. 


Two 


234  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

2nd.  That  the  minority  should  concede  the  determination  as  the  unanimous 
opinion  of  the  court. 

No  doubt  sufficient  reasons  appeared  to  us  to  adopt  these  preliminary 
points.  .  .  . 

But  I  can  assure  you,  sir,  that  the  commissioners  were  unanimously  of 
opinion  that  the  private  right  of  soil  should  not  be  affected  by  the  decision. 
The  decision  was  not  to  reach  the  question  of  property  in  soil.1 

The  international  significance  of  the  strange  and  novel  experience  of  a 
State  appearing  against  a  State  in  a  tribunal  of  justice  was  not  lost  upon 
the  public  men  of  the  day.  No  less  a  personage  than  Robert  R.  Livingston,, 
then  Secretary  for  Foreign  Affairs  of  the  Confederation,  thought  it  of  suffi- 
cient moment  to  refer  to  it  in  a  letter  dated  January  10,  1783,  addressed  to 
the  Marquis  of  Lafayette,  in  which  he  felt  justified  in  saying: 

The  great  cause  between  Connecticut  and  Pennsylvania  has  been  decided 
in  favor  of  the  latter.  It  is  a  singular  event.  There  are  few  instances  of 
independent  states  submitting  their  cause  to  a  court  of  justice.  The  day 
will  come,  when  all  disputes  in  the  great  republic  of  Europe  will  be  tried  in 
the  same  way,  and  America  be  quoted  to  exemplify  the  wisdom  of  the 
measure.2 

The  cases  of  Massachusetts  v.  New  York 3  and  South  Carolina  v. 
Cases  Georgia 4  were  disputes  in  which  commissioners  were  appointed  and  courts 

constituted  for  the  trial  of  the  causes  in  accordance  with  the  ninth  of  the 
Articles  of  Confederation,  and  although  the  cases  never  came  to  trial,  as  the 
disputes  were  settled  out  of  court,  they  are  interesting,  inasmuch  as  the  case 
of  Massachusetts  v.  New  York  is  the  only  one  in  which  a  court  had  been 
appointed  by  agreement  of  the  agents  which  did  not  come  to  trial ;  and  the 
case  of  South  Carolina  v.  Georgia  is  interesting  and  important  in  that  it  is 
the  only  case  or  controversy  between  the  States  under  the  ninth  article  in  which 
the  agents  were  unable  to  agree  upon  the  members  to  form  the  court,  and 
therefore  the  only  one  in  which  resort  was  had  to  the  method  of  striking  pro- 
vided by  the  ninth  article.  The  facts  and  procedure  in  these  cases  will  there- 
fore be  briefly  stated. 

On  June  3,  1784,  Congress  received  the  report  of  the  committee  to  which 
it  had  referred  "a  petition  from  the  legislature  of  the  Commonwealth  of 
Massachusetts,  praying  that  a  Federal  Court  may  be  appointed  by  Congress 
to  decide  a  dispute  between  the  said  Commonwealth  and  the  State  of  New 
York,"  5  and  the  Congress  resolved  "  that  the  first  Monday  in;  December  next 

1  Henry  M.  Hoyt,  Brief  of  a  Title  in  the  Seventeen  Townships  of  the  County  of 
Lucerne,  a  Syllabus  of  the  Controversy  between  Connecticut  and  Pennsylvania,  1879,  pp. 
45,  46. 

-  Francis  Wharton,  Diplomatic  Correspondence  of  the  American  Revolution,  Vol.  6.  p. 
202.  See  also  Jared  Sparks,  The  Diplomatic  Correspondence  of  the  American  Revolution 
(.1830),  Vol.  x,  p.  21. 

3  131   U.  S.,  Appendix,  p.  lxi. 

4  Ibid.,  p.  lxii. 
B  Ibid.,  p.  lxi. 


TEMPORARY   JUDICIAL    COMMISSIONS 


235 


be  assigned  for  the  appearance  of  the  said  States  of  Massachusetts  and  New 
York  by  their  lawful  agents,  at  the  j)lace  at  which  Congress  shall  then  be 
sitting."  1 

From  the  petition  of  the  State  of  Massachusetts,  it  appeared  that  this 
State  claimed  the  tract  of  land  between  42°  2'  N.  and  44°  15'  N.,  which 
extended  westwardly,  in  accordance  with  the  terms  of  its  charter,  to  the 
"  Southern  Ocean,"  which  contention  was  denied  by  the  State  of  New  York 
as  inconsistent  with  its  charter.  Therefore,  on  December  8,  1784,  the  litigat- 
ing States  appeared  by  their  agents  and  presented  their  credentials,  which 
were  spread  upon  the  Journal.  The  credentials  of  each  were,  by  direction  of 
Congress,  examined  by  the  agents  of  the  two  States  and  found  to  be  without 
objection,  whereupon,  on  December  10th,  the  agents  were  "  directed  to  appoint, 
by  joint  consent,  commissioners  or  judges  to  constitute  a  court  for  hearing 
and  determining  the  matter  in  question,  agreeable  to  the  9th  of  the  articles 
of  confederation  and  perpetual  union."  2  The  agents  complied  with  the  direc- 
tion of  Congress,  and  on  June  9,  1785,  the  agents  of  the  two  States,  namely, 
John  Jay,  Robert  R.  Livingston  and  Walter  Livingston,  on  behalf  of  New 
York,  and  John  Lowell,  James  Sullivan,  Theophilus  Parsons,  Rufus  King  and 
S.  Holton,  on  behalf  of  Massachusetts,  informed  Congress,  in  a  paper  to 
which  they  affixed  their  signatures,  that  they  had  selected  as  judges,  Thomas 
Johnson,  George  Wythe,  George  Reed,  James  Monroe,  Isaac  Smith,  William 
Patterson,  Samuel  Johnson,  William  Fleming  and  John  Sitgreaves.3  The 
agents  requested  that  commissions  might  be  issued  to  the  judges  and  that  they 
be  notified  to  meet  at  Williamsburg,  Va.,  on  the  third  Tuesday  of  November 
next,  to  hear  and  determine  the  controversy.  The  court,  however,  did  not 
meet,  as  appears  from  the  following  resolution  of  the  Congress  of  October 
8,  1787: 

Whereas  it  appears  by  the  journals  of  Congress  that  a  federal  court  has 
been  instituted  pursuant  to  the  articles  of  confederation  and  perpetual  union, 
to  hear  and  determine  a  controversy  respecting  territory  between  the  states 
of  Massachusetts  and  New  York ;  and  whereas  it  appears  by  the  representa- 
tions of  the  delegates  of  the  said  states  in  Congress  that  the  said  controversy 
has  ceased,  and  the  same  has  been  settled  and  determined  by  an  agreement 
entered  into  on  the  16th  day  of  December  last,  by  the  agents  of  the  said 
States,  and  any  further  proceedings  in  or  relative  to  the  aforesaid  court 
having  become  unnecessary. 

Resolved,  That  all  further  proceedings  in  and  relative  to  the  said  federal 
court,  as  also  the  commissions  of  the  judges  thereof,  cease  and  determine.4 

The  agreement  between  the  two  States  was  spread  at  length  upon  the  Journal 

1  Ibid.,  p.  Ixi. 

2  Journals  of  the  American  Congress,  Vol.  iv,  p.  453. 
*Ibid.,  p.  536. 

*  Ibid.,  p.  787. 


236  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

of  the  Congress,  in  accordance  with  the  provisions  of  the  ninth  article,  that 
"  the  judgment  or  sentence  and  other  proceedings  being  in  either  case  trans- 
mitted to  Congress,  and  lodged  among  the  acts  of  Congress  for  the  security 
of  the  parties  concerned." 

Almost  a  year  to  the  date,  namely,  on  June  1,  1785,  after  the  case  of 
Massachusetts  v.  New  York  had  been  brought  before  the  Congress,  that  body 
resolved  that  "  the  second  Monday  in  May  next  be  assigned  for  the  appear- 
ance of  the  states  of  South-Carolina  and  Georgia,  by  their  lawful  agents; 
and  that  notice  thereof,  and  of  the  petition  of  the  legislature  of  the  state  of 
South-Carolina,  be  given  by  the  secretary  of  Congress,  to  the  legislative  au- 
thority of  the  state  of  Georgia."  1  As  in  the  case  of  Massachusetts  v.  New 
York,  the  form  of  notice  contained  a  copy  of  South  Carolina's  petition,  from 
which  it  appeared  that  South  Carolina  claimed  certain  lands  lying  between 
North  Carolina  and  a  line  to  be  run  due  west  to  a  certain  spot  said  to  be  the 
head  of  the  Savannah  River,  a  contention  denied  by  Georgia,  which  insisted 
that  the  source  of  the  Keowee  River  is  to  be  considered  as  the  head  of  the 
Savannah.2  South  Carolina  also  claimed  the  lands  between  a  line  drawn 
from  the  head  of  St.  Mary  River,  the  head  of  the  Altamaha,  the  Mississippi 
and  Florida,  alleging  that  such  lands  were  within  the  limits  of  its  charter,  and 
that  they  were  not  annexed  to  Georgia  by  the  proclamation  of  the  King  of 
Great  Britain,  a  contention  denied  by  Georgia,  which  claimed  the  lands  by 
virtue  of  such  proclamation. 

The  agents  who  were  to  appear  in  the  month  of  May  did  not  do  so, 
because  the  time  had  been  extended.  They  appeared,  however,  on  Septem- 
ber 4,  1786,  the  date  agreed  upon,  at  which  time  they  produced  their  creden- 
tials, which  were  spread  in  full  upon  the  Journal.  They  were  then  directed 
by  the  Congress,  as  in  the  other  cases,  "  to  appoint,  by  joint  consent,  commis- 
sioners or  judges  to  constitute  a  court  for  hearing  and  determining  the  matter 
in  question,  agreeable  to  the  9th  of  the  articles  of  confederation  and  perpetual 
union."  3  The  agents  were  less  fortunate  than  in  the  case  of  Pennsylvania  v. 
Connecticut  and  Massachusetts  v.  New  York,  in  that  they  were  unable  to  agree 
upon  the  members  of  the  court.  They  therefore  prayed  Congress  to  proceed 
to  strike  a  court  agreeable  to  the  Articles  of  Confederation.  The  Congress 
complied  with  this  request,  and  on  the  13th  the  agents  of  the  States  attended. 
On  motion  of  the  delegates  of  Georgia  it  was  thereupon  "  Resolved,  That 
Congress  proceed  to  strike  a  court  in  the  manner  poinded  out  by  the  confedera- 
tion." 4  Three  persons  were  thus  named  from  each  of  the  States,  and  from 
the  list  of  persons  thus  named  each  party  alternately  struck  until  the  number 

1  Journals  of  the  American  Congress   Vol.  iv,  p.  529. 

2  131  U.  S.,  App.,  p.  lxii. 

3  Journals  of  the  American  Congress,  Vol.  iv,  p.  693. 
*  Ibid.,  p.  696. 


TEMPORARY   JUDICIAL    COMMISSIONS  237 

was  reduced  to  thirteen.  After  this,  upon  motion  from  the  delegates  of 
South  Carolina,  the  thirteen  names  were  put  in  a  box  and  the  following  nine 
were  drawn  out  in  the  presence  of  Congress :  Alexander  Contee  Hanson, 
James  Madison,  Robert  Goldsborough,  James  Duane,  Philemon  Dickinson, 
John  Dickinson,  Thomas  McKean,  Egbert  Benson  and  William  Pynchon.1 
The  next  day  the  delegates  of  Georgia  moved  that  the  court  be  held  at  the 
City  of  New  York  on  the  first  Monday  of  May,  1787.  The  delegates  from 
South  Carolina  proposed  to  substitute  for  this  date  the  third  Monday  of 
November  of  the  current  year.  The  amendment  failed,  and  the  court  was 
therefore  directed  to  meet  as  proposed  by  the  State  of  Georgia.2 

The  membership. of  this  court  was  certainly  such  as  to  satisfy  the  most 
exacting  requirements.  It  contained,  as  did  the  court  in  the  case  of  Massa- 
chusetts v.  New  York,  the  name  of  a  future  president,  and  the  gentleman 
who  can  in  all  probability  be  considered  as  the  father  of  the  Constitution, 
James  Madison;  John  Dickinson,  a  member  of  the  Continental  Congress,  who 
had  refused  to  sign  the  Declaration  of  Independence  because  he  believed  it 
was  inexpedient  at  the  time  and  under  the  circumstances,  but  who  enlisted  and 
served  as  a  private  in  the  army  after  the  Declaration  had  been  proclaimed, 
who  drafted  the  Articles  of  Confederation  under  which  the  proceeding  was 
to  take  place,  and  who  later  was  an  influential  member  of  the  Constitutional 
Convention ;  Thomas  McKean,  Chief  Justice  of  the  Supreme  Court  of  Penn- 
sylvania and  Governor  of  that  State;  Egbert  Benson,  Attorney  General  of 
New  York,  later  a  Justice  of  the  Supreme  Court  of  the  State  and  a  judge  of 
the  Circuit  Court  of  the  United  States.  The  court,  however,  seems  not 
to  have  met,  and  the  difference  was  settled  by  compact  between  the  States 
dated  February  24,  1787,  as  appears  from  the  first  and  second  articles  thereof, 
to  be  found  in  the  case  of  South  Carolina  v.  Georgia,  recorded  in  93  United 
States  Reports,  pp.  5-6. 

These  are,  so  far  as  known,  the  only  cases  of  dispute  between  the  States 
which  were  submitted,  or  prepared  for  submission,  to  temporary  tribunals 
appointed  according  to  the  provisions  of  the  ninth  of  the  Articles  of  Confedera- 
tion. In  the  first  case,  that  of  Pennsylvania  v.  Connecticut,  the  court  was  ap- 
pointed by  consent  of  the  parties  and  rendered  judgment.  In  the  second, 
that  of  Massachusetts  v.  New  York,  a  court  was  indeed  appointed  by  consent 
of  the  parties,  in  accordance  with  the  provisions  of  the  ninth  article,  but  the 
controversy  was  settled  out  of  court.  In  the  case  of  South  Carolina  v.  Georgia 
a  court  was  also  appointed  under  the  ninth  article,  but  as  the  agents  were  unable 
to  agree  upon  the  commissioners  or  judges,  they  were  chosen  by  the  method 

1Ibid..  p.  696. 
2  Ibid.,  p.  697. 


238 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Significance 
of  the 
Temporary 
Tribunals 


Other 
Appeals  to 
Congress 


Dispute 
Involving 
the  Existence 
of  a  State 


of  the  ninth  article,  devised  to  enable  a  court  to  be  constituted  when  the  States 
in  controversy  were  unable  to  agree  upon  its  composition.  We  thus  have,  in 
these  three  cases,  a  demonstration  of  the  possibilities  of  peaceable  settlement: 
first,  where  the  parties  agree  upon  the  court,  which  actually  renders  a  decision ; 
second,  where  the  parties,  knowing  that  the  controversy  is  to  be  settled  by 
the  court,  reach  an  agreement,  which  appears  to  have  been  impossible  without 
the  existence  of  the  court;  and  third,  where  the  court  has  been  constituted 
without  the  agreement  of  the  parties,  according  to  a  method  known  in  advance 
and,  as  in  the  previous  case,  an  agreement  is  reached  because  of  the  existence 
of  the  tribunal  and  without  recourse  to  its  judgment. 

In  three  other  cases  the  action  of  Congress  was  invoked,  namely,  the 
controversy  between  New  Hampshire  and  Vermont,  New  York  and  Vermont, 
and  Massachusetts  and  Vermont,1  arising  out  of  the  so-called  New  Hampshire 
grants;  the  case  of  Pennsylvania  v.  Virginia  2  and  the  case  of  New  Jersey  v. 
Virginia.3  In  no  one  of  these  was  a  court  appointed,  but  as  they  are  inter- 
esting because  of  the  reference  to  Congress,  they  will  be  briefly  mentioned, 
in  order  that  all  known  cases  under  the  ninth  article  may  be  noted. 

The  case  of  the  New  Hampshire  grants  is  very  complicated,  and  it  is  re- 
ferred to  largely  as  showing  the  solicitude  of  the  Congress,  as  the  successor 
of  the  King  in  Council,  that  a  dispute  involving  three  States  and  a  claimant 
to  statehood  should  be  peaceably  settled.  It  is  also  referred  to,  as  showing 
the  impracticability  if  not  futility  of  supposing  that  a  community  would  submit 
to  the  arbitrament  of  a  temporary  tribunal  the  question  of  its  existence  or 
right  to  exist,  for  the  statehood  of  Vermont  hung  in  the  balance. 

New  York  claimed  to  the  Connecticut  River.  In  1750,  as  recorded  by 
the  historian  Bancroft,  "  New  York  carried  its  claims  to  the  Connecticut 
river;  France,  which  had  command  of  Lake  Champlain,  extended  her  preten- 
sions to  the  crest  of  the  Green  Mountains ;  while  Wentworth,  the  only  royal 
governor  in  New  England,  began  to  convey  the  soil  between  the  Connecticut 
and  Lake  Champlain  by  grants  under  the  seal  of  New  Hampshire."  4  These 
grants  are  therefore  known  as  the  New  Hampshire  grants.  In  1764  the 
King  in  Council,  according  to  the  same  historian,  "  dismembered  New  Hamp- 
shire, and  annexed  to  New  York  the  country  north  of  Massachusetts  and 
west  of  Connecticut  river.  The  decision  was  declaratory  of  the  boundary; 
and  it  was  therefore  held  by  the  royalists  that  the  grants  made  under  the 
sanction  of  the  royal  governor  of  New  Hampshire  were  annulled."  5  How- 
ever, the  towns  and  villages  in  dispute  were  settled  largely  by  New  Englanders 

1 131  U.  S.,  Appendix,  p.  1. 

2  Ibid.,  p.  liii. 

3  Ibid.,  p.  Iviii. 

4  George  Bancroft,  History  of  the  United  States  of  America,  1883  ed.,  Vol.  ii,  p.  361. 

5  Ibid.,  Vol.  iii,  p.  87. 


TEMPORARY    JUDICIAL   COMMISSIONS  239 

under  the  New  Hampshire  grants.  In  1775,  again  to  quote  Bancroft,  "the 
court  of  common  pleas  was  to  be  opened  by  the  royal  judges  in  what  was  called 
the  New  York  county  of  Cumberland,  at  Westminster,  in  the  New  Hampshire 
Grants,  on  the  eastern  side  of  the  Green  Mountains.  To  prevent  this  asser- 
tion of  the  jurisdiction  of  New  York  and  of  the  authority  of  the  king,  a  body 
of  young  men  from  the  neighboring  farms  on  the  thirteenth  of  March  took 
possession  of  the  court-house.  The  royal  sheriff,  who,  against  the  wish  of 
the  judges,  had  raised  sixty  men  armed  with  guns  and  bludgeons,  demanded 
possession  of  the  building;  and,  after  reading  the  riot  act  and  refusing  to 
concede  terms,  late  in  the  night  ordered  his  party  to  fire.  .  .  .  The  act  closed 
the  supremacy  of  the  king  and  of  New  York  to  the  east  of  Lake  Champlain."  1 

The  settlers  of  the  Green  Mountains  organized  themselves  as  a  State,  under 
the  name  of  Vermont,  and  in  convention  on  the  15th  day  of  January,  1777, 2 
declared  their  independence  of  New  York.  In  the  following  July  a  convention 
assembled  at  Windsor,  adopted  a  constitution,  which  was  accepted  by  the 
legislature  and  declared  to  be  a  part  of  the  laws  of  the  State.3 

It  is  clear  from  this  brief  statement  that  Massachusetts  was  not  vitally 
interested,  as  the  land  lay  to  the  north  of  its  territory  under  the  charter.  It 
is  clear  that  New  York  was  vitally  interested,  as,  if  its  contention  were 
allowed,  it  would  receive  a  very  considerable  extension  of  desirable  territory. 
It  is  also  evident  that  New  Hampshire  was  even  more  interested  because,  if 
the  contention  of  New  York  were  granted,  or  if  the  settlers  in  Vermont  had 
their  way,  the  authorities  of  New  Hampshire  would  lose  title  to  a  territory 
which  they  had  possessed  and  which  they  naturally  sought  to  retain.  Finally, 
the  settlers  of  Vermont  were  or  were  not  a  State,  according  as  the  case  turned 
out. 

A  secret  agreement  between  New  York  and  New  Hampshire  to  divide 
the  territory  in  dispute  did  not  result  as  anticipated  by  the  two  conspirators, 
owing  to  the  resistance  and  the  determination  of  "  the  Green  Mountain  boys," 
who  showed  their  mettle  by  the  defeat  of  the  Hessians  belonging  to  Burgoyne's 
army  at  the  battle  of  Bennington.  Unable  to  reach  a  settlement  by  direct 
negotiation,  or  even  by  secret  agreement  providing  for  dismemberment,  New 
York  bethought  itself  of  the  Congress,  doubtless  hoping  that  from  the  suc- 
cessor of  the  King  in  Council  it  would  obtain  a  confirmation  of  title  to  the 
territory  it  had  acquired  by  the  decision  of  the  King  in  Council  in  1764.4 
On  May  22,  1779,  the  day  on  which  the  petition  from  the  merchants  and 
citizens  of  Philadelphia  had  been  read  to  provide  a  court  of  appeals  in  prize 
cases,  the  delegates  of  New  York  in  the  Congress  moved  a  series  of  resolutions 

»  Ibid.,  Vol.  iv,  p.  142. 

2  Ibid.,  Vol.  v,  p.  157. 

^  Ibid.,  p.  161. 

*Acts  of  the  Privy  Council,  Colonial  Scries,  Vol.  iv,  pp.  673-4. 


240  THE    UNITED   STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

relating  to  the  controversy.1  On  September  24th  of  that  year  it  was  "  Re- 
solved, unanimously,  That  it  be,  and  hereby  is,  most  earnestly  recommended  to 
the  states  of  New  Hampshire,  Massachusetts  Bay,  and  New  York,  forthwith 
to  pass  laws  expressly  authorizing  Congress  to  hear  and  determine  all  differ- 
ences between  them  relative  to  their  respective  boundaries,  in  the  mode  pre- 
scribed by  the  articles  of  confederation,  so  that  Congress  may  proceed  thereon 
by  the  first  day  of  February  next  at  the  farthest:  and  further,  that  the  said 
states  of  New  Hampshire,  Massachusetts  Bay,  and  New  York,  do,  by  express 
laws  for  the  purpose,  refer  to  the  decision  of  Congress  all  differences  or 
disputes  relative  to  jurisdiction,  which  they  may  respectively  have  with  the 
people  of  the  district  aforesaid,  so  that  Congress  may  proceed  thereon  on  the 
first  day  of  February  next."  2  It  was  necessary  for  Congress  to  proffer  such 
a  request,  inasmuch  as  it  did  not  possess  the  authority  to  form  a  committee 
by  "  striking,"  at  the  request  of  the  State  of  New  York,  because  the  Articles 
of  Confederation  were  not  then  the  law  of  the  land.  If  they  had  been  in 
effect,  the  situation  would  have  been  wholly  different. 

On  October  2,  1779,  the  States  were  again  urged  "to  authorize  Congress 
to  proceed  to  hear  and  determine  all  disputes  subsisting  between  the  grantees 
of  the  several  states  aforesaid,  with  one  another,  or  with  either  of  the  said 
states,  respecting  title  to  lands  lying  in  the  said  district,  to  be  heard  and  deter- 
mined by  '  commissioners  or  judges,'  to  be  appointed  in  the  mode  prescribed 
by  the  ninth  article."  3  New  York,  having  everything  to  gain,  and  New 
Hampshire,  hoping  to  regain  what  would  be  lost  either  to  New  York  or  the 
people  of  Vermont  if  its  contention  were  not  sustained,  enacted  the  necessary 
legislation.4  Massachusetts,  as  above  stated,  had  no  real  interest  in  the  ques- 
tion, but  the  people  of  Vermont  had  to  be  reckoned  with,  and  having  organized 
themselves  as  a  State,  they  were  unwilling  to  have  what  they  considered  their 
lands  voted  away  by  acts  of  the  legislatures  of  the  claimant  States,  or  by  act 
of  Congress.  Their  opposition  undoubtedly  prevented  the  appointment  of  a 
court,  for  none  was  constituted,  and  although,  in  the  month  of  September, 
1780,  agents  of  New  York  laid  their  case  before  Congress,5  claiming  that  from 
1764  to  1777  the  people  of  the  territory  in  dispute  were  represented  in  the 
legislature  of  New  York  and  submitted  to  its  authority,  although  the  agents 
of  New  Hampshire,  in  the  same  month,  presented  its  case  to  the  Congress,6 
maintaining  that  the  tract  lay  within  the  limits  of  New  Hampshire  and  that 

1  Journals  of  the  Continental  Congress,  Vol.  xiv,  pp.  631-3. 
-  Ibid.,  Vol.  xv,  pp.  1096-7. 
»  Ibid.,  p.  1135. 

4  Act  of  New  York,  Oct.  21,  1779.     Papers  of  the  Continental  Congress,  No.  40,  I;  folio 
269;   Act  of  New   Hampshire.   November,   1779,   folio  563. 

&  Journals,  Vol.  xviii,  pp.  841,  843.     Sessions  of  September  19  and  20,  1780. 
6  Ibid.,  p.  868.     Session  of  September  27,  1780. 


TEMPORARY    JUDICIAL    COMMISSIONS  241 

the  people  inhabiting  it  had  no  right  to  a  separate  and  independent  existence, 
the  Congress  did  not,  because  it  could  not,  take  action.  The  case  had  ceased, 
by  the  action  of  the  settlers  of  Vermont,  to  be  one  of  law,  it  had  become  one 
of  force ;  it  was  no  longer  a  matter  for  the  courts ;  it  had  become  a  political 
instead  of  a  judicial  question. 

The  only  solution  compatible  with  peaceful  settlement  was  apparently 
the  recognition  of  the  independent  statehood  of  the  settlers.  This  Massachu- 
setts and  New  Hampshire  did  in  1781  and  New  York  in  1790,  and  the  contro- 
versy was  settled  in  the  end,  as  it  should  have  been  and  was  foredoomed  to 
be  settled  in  the  beginning,  by  the  admission  of  Vermont  as  a  State  of  the 
American  Union  on  February  18,  1791.1  While  the  reasons  for  the  failure 
of  the  Congress  to  appoint  a  court  can  be  deduced  from  the  mere  statement 
of  the  facts,  we  nevertheless  have  them  stated  by  a  contemporary,  whose 
word  carries  great  weight.  Thus,  Alexander  Hamilton  wrote  in  The 
Federalist: 

Those  who  had  an  opportunity  of  seeing  the  inside  of  the  transactions, 
which  attended  the  progress  of  the  controversy  between  this  state  [New 
York]  and  the  district  of  Vermont,  can  vouch  the  opposition  we  experienced, 
as  well  from  states  not  interested,  as  from  those  which  were  interested  in  the 
claim ;  and  can  attest  the  danger  to  which  the  peace  of  the  confederacy  might 
have  been  exposed,  had  this  state  attempted  to  assert  its  rights  by  force.  .  .  . 
New-Jersy  and  Rode-Island,  upon  all  occasions,  discovered  a  warm  zeal 
for  the  independence  of  Vermont ;  and  Maryland,  until  alarmed  by  the  ap- 
pearance of  a  connection  between  Canada  and  that  place,  entered  deeply 
into  the  same  views.2 

On  December  27,  1779,  the  following  entry  in  the  Journals  of  Congress 
shows  that  a  dispute  had  arisen  between  Pennsylvania  and  Virginia,  and  the  Pen     h 
action  which  the  Congress,  as  the  apparent  successor  of  the  King  in  Council  v-  Virginia 
thought  should  be  taken: 

Whereas  it  appears  to  Congress,  from  the  representation  of  the  delegates 
of  the  State  of  Pensylvania,  that  disputes  have  arisen  between  the  states  of 
Pensylvania  and  Virginia,  relative  to  the  extent  of  their  boundaries,  which 
may  probably  be  productive  of  serious  evils  to  both  states,  and  tend  to  lessen 
their  exertions  in  the  common  cause :  therefore, 

Resolved,  That  it  be  recommended  to  the  contending  parties  not  to  grant 
any  part  of  the  disputed  land,  or  to  disturb  the  possession  of  any  persons 
living  thereon,  and  to  avoid  every  appearance  of  force  until  the  dispute  can 
be  amicably  settled  by  both  states,  or  brought  to  a  just  decision  by  the  inter- 
vention of  Congress ;  that  possessions  forcibly  taken  be  restored  to  the 
original  possessors,  and  things  placed  in  the  situation  in  which  they  were  at 
the  commencement  of  the  present  war,  without  prejudice  to  the  claims  of 
either  party.3 

il  Stat.,  191. 

2  The  Federalist,  1802  erl.,  Vol.  i,  pp.  36-7.     Paper  vii. 

3  Journals  of  the  Continental  Congress,  Vol.  xv,  p.  1411. 


vama 


242  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

The  Congress  was  naturally  desirous,  as  appears  from  the  resolution,  that  the 
dispute  be  amicably  settled  by  both  States  or  brought  to  a  just  decision  by 
the  intervention  of  Congress,  and,  in  order  to  render  this  possible,  recom- 
mended the  maintenance  of  the  status  quo  pending  settlement.  The  States  in 
controversy,  interested  in  the  common  cause,  seem  to  have  acted  in  accordance 
with  the  desires  of  Congress,  although  it  does  not  appear  how  and  to  what 
extent  its  advice  was  followed,  as  there  is  no  further  reference  to  the  case  in 
the  records  of  that  body.  An  agreement  for  settlement  was  made  in  Balti- 
more on  August  31,  1779, *  in  pursuance  of  which  commissioners  were  ap- 
pointed on  the  part  of  Pennsylvania  and  Virginia.  In  consequence  of  this 
action  on  the  part  of  the  States,  "  the  line  commonly  called  Mason  and  Dixon's 
line  "  was  "  extended  due  west  five  degrees  of  longitude,"  "  from  the  river 
Delaware  for  the  southern  boundary  of  Pennsylvania,"  and  "  a  meridian  line 
drawn  from  the  western  extremity  thereof  to  the  northern  line  of  the  State  " 
became  the  western  boundary.  On  the  23d  of  August,  1784,  the  commission 
reported  that  the  Ohio  River  was  reached.2 

The  cession  to  the  United  States,  dated  March  1,  1784,3  by  Virginia  of  its 
claims  to  all  territory  from  the  northern  bank  of  the  OJiio  lessened  the  interest 
which  the  Old  Dominion,  as  Virginia  is  affectionately  called  by  its  citizens, 
might  otherwise  have  had,  not  only  in  the  prolongation  of  the  line  but  in  the 
prolongation  of  the  controversy. 
Congress  The  last  case  coming  before  the  Congress  in  which  a  request  was  made, 

Refuses  to  . 

App»™'  and  the  only  one  in  which  the  Congress  refused  the  petition  to  appoint  a  court 

in  accordance  with  the  ninth  article,  was  a  controversy  between  New  Jersey 
and  Virginia.4  The  dispute  was  ended,  if  indeed  it  can  properly  be  said 
to  have  begun,  by  the  cession  of  Virginia's  claims  to  the  Northwest  Territory 
on  the  1st  of  March,  1784.  The  facts  of  the  case,  however,  are  interesting, 
as  showing  the  magnitude  of  the  cases  referred  to  the  Congress,  because  the 
territory  in  question  was  a  large  tract  of  land  called  Indiana,  located  between 
the  Little  Kennawa,  the  Monongahela  and  the  southern  boundary  of  Pennsyl- 
vania. A  memorial  was  presented  to  Congress  on  September  14,  1779,5  by 
one  George  Morgan,  as  agent  for  the  proprietors  of  this  tract,  claiming  that 
his  principals  had  acquired  the  tract  of  land  by  purchase  from  the  Six  Nations 
and  other  Indians,  that  after  the  purchase  of  the  lands  they  had  been  with- 
drawn from  the  jurisdiction  of  Virginia  by  the  King  in  Council,  but  that  Vir- 
ginia, having  resumed  jurisdiction  thereof,  was  about  to  order  sales  to  be 
made  within  the  district  in  question.     The  memorial  prayed  that,  as  in  the 

1  131  U.  S.,  Appendix,  p.  liii. 

-  Ibid.,  p.  liv. 

3  Bancroft,  History  of  the  United  States,  Vol.  vi,  pp.  115-6. 

•l  131  U.  S.,  Appendix,  p.  lviii. 

B  Journals  of  the  Continental  Congress,  Vol.  xv,  pp.  1063-4. 


TEMPORARY   JUDICIAL    COMMISSIONS  243 

case  of  Pennsylvania  v.  Virginia,  the  sales  might  be  restrained  and  the  status 
quo  preserved  until  the  matter  could  be  heard  by  Congress.  Leaving  out 
various  petitions  to  the  Congress,  it  is  sufficient  for  present  purposes  to  say  that- 
a  petition  of  Colonel  George  Morgan,  as  agent  for  the  State  of  New  Jersey, 
was  presented  to,  read  and  considered  by  Congress  while  that  body  had  before 
it,  but  before  it  had  adopted  the  territorial  cession  of  Virginia,  whose  accept- 
ance by  the  Congress  on  behalf  of  the  United  States  would  end  the  controversy 
in  so  far  as  Virginia  was  concerned.  The  petition  is  interesting  as  it  was  an 
attempt  on  the  part  of  a  State  to  enable  its  citizens  to  present  a  claim  to  the 
Congress  and  to  have  a  court  appointed  for  the  determination  of  land  not 
claimed  as  belonging  to  the  State  of  New  Jersey  as  such,  but  to  land  acquired 
by  some  of  its  citizens  whose  cause  New  Jersey  espoused  by  virtue  of  their 
citizenship.  In  view,  therefore,  of  these  facts  and  of  this  action  of  the  State 
of  New  Jersey,  which  is  capable  of  a  larger  application,  the  material  portion 
of  the  petition  is  here  set  forth  : 

To  the  United  States  of  America,  in  Congress  assembled, 
The  petition  of  Colonel  George  Morgan,  agent  for  the  State  of  New 
Jersey  respectfully  sheweth ;  that  a  controversy  now  subsists  between  the 
said  State  and  the  Commonwealth  of  Virginia  respecting  a  tract  of  land 
called  Indiana,  lying  on  the  river  Ohio,  and  being  within  the  United  States: 
That  your  petitioner  and  others,  owners  of  the  said  tract  of  land,  labor  under 
grievances  from  the  said  Commonwealth  of  Virginia,  whose  legislature  has 
set  up  pretensions  thereto :  That  in  consequence  of  instructions  from  the 
legislature  of  New  Jersey  to  their  delegates  in  Congress,  anno  1781,  and  the 
petitions  of  Indiana  proprietors,  anno  1779,  1780  and  1781,  a  hearing  was 
obtained  before  a  very  respectable  committee  of  Congress,  who,  after  a  full 
and  patient  examination  of  the  matter,  did  unanimously  report  .  .  .  that  the 
purchase  of  the  Indiana  Company  was  made  bona  fide  for  a  valuable  con- 
sideration, according  to  the  then  usage  and  custom  of  purchasing  lands  from 
the  Indians,  with  the  knowledge,  consent  and  approbation  of  the  Crown 
of  Great  Britain  and  the  then  governments  of  New  York  and  Virginia: 
That  notwithstanding  this  report,  the  State  of  Virginia  still  continues  to  claim 
the  lands  in  question,  to  the  great  injury  of  your  petitioner  and  others :  That 
your  petitioner,  on  behalf  of  himself  and  the  other  proprietors  of  the  said 
tract  of  land,  applied  to  the  said  State  of  New  Jersey,  of  which  some  of  them 
are  citizens,  for  its  protection :  That  the  legislature  of  the  said  State  there-  ' 
upon  nominated  and  appointed  your  petitioner  the  lawful  agent  of  the  said 
State,  for  the  express  purpose  of  preparing  and  presenting  to  Congress  a 
memorial  or  petition  on  the  part  and  behalf  of  the  said  State,  representing 
the  matter  of  the  complaint  aforesaid,  to  pray  for  a  hearing,  and  to  prosecute 
the  said  hearing  to  issue,  in  the  mode  pointed  out  by  the  Articles  of  Con- 
federation :  That  the  said  legislature  ordered  that  a  commission  should  be 
issued  by  the  executive  authority  of  the  said  State,  to  your  petitioner,  for 
the  purposes  aforesaid:  That  a  commission  was  accordingly  issued  to  your 
petitioner  by  the  executive  authority  of  the  said  State,  a  copy  whereof 
accompanies  this  petition.  .  .  .  Wherefore  your  petitioner,  as  lawful  agent 
of  the  said  State  of  New  Jersey,  prays  for  a  hearing  in  the  premises,  agree- 


244  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

ably  to  the  9th  Article  of  Confederation  and  Perpetual  Union  between  the 
United  States  of  America.1 

A  motion  to  commit  the  petition  and  also  a  motion  to  consider  and  prepare 
an  answer  to  it  were  lost,  after  which  the  Congress  accepted  the  deed  of  cession 
from  Virginia,  as  it  had  previously,  in  1781,  accepted  a  cession  of  the  claims 
that  New  York  had  to  the  territory  northwest  of  the  Ohio.  It  was  therefore 
unnecessary  for  the  Congress  to  take  further  action  on  this  petition  in  the  form 
in  which  it  was  presented,  as  the  claim  of  Messrs.  Morgan  and  his  principals 
was  thereafter  against  the  United  States,  not  Virginia. 

Doubtless  the  court  of  appeals  in  cases  of  capture  inclined  the  hearts  and 
the  understanding  of  the  good  people  of  the  Confederation  to  the  establishment 
of  a  judiciary  which  could  pass  upon  questions  in  which  the  States  had  assumed 
jurisdiction,  and  thus  create  uniformity  where  diversity  would  otherwise  have 
existed  and  prejudice  the  Confederation  as  such  in  its  relations  with  foreign 
nations.  But  prize  cases  had  been  for  centuries  submitted  to  prize  courts, 
tribunals  or  commissions.  The  novelty  of  the  procedure  was  to  establish 
one  court  of  appeal  from  thirteen  States,  a  great  incentive  not  only  to  the 
establishment  of  a  Supreme  Court  but  also  to  the  establishment  of  an  interna- 
tional court  of  prize.  Controversies  between  States  claiming  to  be  sovereign, 
free  and  independent,  and  in  their  instrument  of  confederation  stating  and 
having  their  sovereignty,  freedom  and  independence  recognized,  had  not 
hitherto  been  submitted  as  a  matter  of  course  to  courts,  tribunals,  and  com- 
missions. The  statesmen  of  the  American  Revolution  had  put  new  wine  into 
old  bottles.  They  had  hit  upon  a  procedure  as  wise  as  it  was  novel  in  devising 
a  method  of  settling  international  disputes  without  a  resort  to  force,  between 
the  breakdown  of  diplomacy  and  the  outbreak  of  war;  and  in  the  short  space 
of  ten  vears  thev  had  completed  the  long  road  between  self-redress  and  arbi- 
tration to  judicial  settlement  by  the  establishment  of  the  permanent  interna- 
tional judiciary  known  as  the  Supreme  Court  of  the  United  States. 

U31   U.   S.,  Appendix,  p.  lx. 


XII 

CREATION  OF  THE  SUPREME  COURT 

The  Americans  form  but  one  people  in  relation  to  their  Federal  government ;  but  in 
the  bosom  of  this  people  divers  political  bodies  have  been  allowed  to  subsist,  which  are 
dependent  on  the  national  government  in  a  few  points,  and  independent  in  all  the  rest, — ■ 
which  have  all  a  distinct  origin,  maxims  peculiar  to  themselves,  and  special  means  of 
carrying  on  their  affairs.  To  intrust  the  execution  of  the  laws  of  the  Union  to  tribunals 
instituted  by  these  political  bodies,  would  be  to  allow  foreign  judges  to  preside  over  the 
nation.  Nay,  more;  not  only  is  each  State  foreign  to  the  Union  at  large,  but  it  is  a 
perpetual  adversary,  since  whatever  authority  the  Union  loses  turns  to  the  advantage  of 
the  States.  Thus,  to  enforce  the  laws  of  the  Union  by  means  of  the  State  tribunals  would 
be  to  allow  not  only  foreign,  but  partial,  judges  to  preside  over  the  nation. 

But  the  number,  still  more  than  the  mere  character,  of  the  State  tribunals,  made  them 
unfit  for  the  service  of  the  nation.  When  the  Federal  Constitution  was  formed,  there 
were  already  thirteen  courts  of  justice  in  the  United  States,  which  decided  causes  without 
appeal.  That  number  is  now  increased  to  twenty-four  [forty-eight].  To  suppose  that  a 
state  can  subsist,  when  its  fundamental  laws  are  subjected  to  four-and-twenty  different 
interpretations  at  the  same  time,  is  to  advance  a  proposition  alike  contrary  to  reason  and 
to  experience.  {Alexis  de  Tocqueville,  De  la  Democratic  en  Amerique,  2  vols.,  1835. 
Translation  of  Francis  Bowen,  Vol.  I,  iS6s,  pp.  177-178.) 

Section  1.  The  judicial  Power  of  the  United  States,  shall  be  vested  in  one  supreme 
Court,  and  in  such  inferior  Courts  as  the  Congress  may  from  time  to  time  ordain  and 
establish.  The  Judges,  both  of  the  supreme  and  inferior  Courts,  shall  hold  their  Offices 
during  good  Behaviour,  and  shall,  at  stated  Times,  receive  for  their  Services,  a  Compen- 
sation, which  shall  not  be  diminished  during  their  Continuance  in  Office. 

Section  2.  The  judicial  Power  shall  extend  to  all  Cases,  in  Law  and  Equity,  arising 
under  this  Constitution,  the  Laws  of  the  United  States,  and  Treaties  made,  or  which  shall 
be  made,  under  their  Authority ; — to  all  Cases  affecting  Ambassadors,  other  public  Min- 
isters and  Consuls; — to  all  Cases  of  admiralty  and  maritime  Jurisdiction; — to  Contro- 
versies to  which  the  United  States  shall  be  a  Party ; — to  Controversies  between  two  or 
more  States; — between  a  State  and  Citizens  of  another  State; — between  Citizens  of  dif- 
ferent States, — between  Citizens  of  the  same  State  claiming  Lands  under  Grants  of  different 
States,  and  between  a  State,  or  the  Citizens  thereof,  and  foreign  States,  Citizens  or 
Subjects. 

In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and  Consuls,  and  those  in 
which  a  State  shall  be  Party,  the  supreme  Court  shall  have  original  Jurisdiction.  In  all 
the  other  Cases  before  mentioned,  the  supreme  Court  shall  have  appellate  Jurisdiction, 
both  as  to  Law  and  Fact,  with  such  Exceptions,  and  under  such  Regulations  as  the 
Congress  shall  make.   .    .    .    (Constitution  of  the  United  States,  Article  III.) 

This  Constitution  defines  the  extent  of  the  powers  of  the  general  government.  If  the 
general  legislature  should  at  any  time  overleap  their  limits,  the  judicial  department  is  a 
constitutional  check.  If  the  United  States  go  beyond  their  powers,  if  they  make  a  law 
which  the  Constitution  does  not  authorize,  it  is  void;  and  the  judicial  power,  the  national 
judges,  who,  to  secure  their  impartiality,  are  to  be  made  independent,  will  declare  it  to 
be  void.  On  the  other  hand,  if  the  states  go  beyond  their  limits,  if  they  make  a  law 
which  is  a  usurpation  upon  the  general  government,  the  law  is  void ;  and  upright,  inde- 
pendent judges  will  declare  it  to  be  so.  Still,  however,  if  the  United  States  and  the 
individual  states  will  quarrel,  if  they  want  to  fight,  they  may  do  it,  and  no  frame  of 
government  can  possibly  prevent  it.  It  is  sufficient  for  this  Constitution,  that,  so  far 
from  laying  them  under  a  necessity  of  contending,  it  provides  every  reasonable  check 
against  it.  (Oliver  EllsiOorth  in  the  Connecticut  Convention.  January  7,  1788,  Jonatlian 
Elliot,  The  Debates  in  the  Several  State  Conventions  on  the  Adoption  of  the  Federal 
Constitution,  Vol.  II,  1836;  second  edition,  Vol.  II,  1891,  p.  796.) 

245 


246  THE   UNITED   STATES:   A   STUDY   IN    INTERNATIONAL   ORGANIZATION 

That  a  federal  system  again  can  flourish  only  among  communities  imbued  with  a  legal 
spirit  and  trained  to  reverence  the  law  is  as  certain  as  can  be  any  conclusion  of  political 
speculation.  Federalism  substitutes  litigation  for  legislation,  and  none  but  a  law-fearing 
people  will  be  inclined  to  regard  the  decision  of  a  suit  as  equivalent  to  the  enactment  of 
a  law.  The  main  reason  why  the  United  States  has  carried  out  the  federal  system  with 
unequalled  success  is  that  the  people  of  the  Union  are  more  thoroughly  imbued  with  legal 
ideas  than  any  other  existing  nation.  Constitutional  questions  arising  out  of  either  the 
constitutions  of  the  separate  States  or  the  articles  of  the  federal  Constitution  are  of  daily 
occurrence  and  constantly  occupy  the  Courts.  Hence  the  citizens  become  a  people  of  con- 
stitutionalists, and  matters  which  excite  the  strongest  popular  feeling,  as,  for  instance,  the 
right  of  Chinese  to  settle  in  the  country,  are  determined  by  the  judicial  Bench,  and  the 
decision  of  the  Bench  is  acquiesced  in  by  the  people.  This  acquiescence  or  submission 
is  due  to  the  Americans  inheriting  the  legal  notions  of  the  common  law,  i.  e.  of  the  "  most 
legal  system  of  law"  (if  the  expression  may  be  allowed)  in  the  world.  Tocqueville  long 
ago  remarked  that  the  Swiss  fell  far  short  of  the  Americans  in  reverence  for  law  and 
justice.  The  events  of  the  last  sixty  years  suggest  that  he  perhaps  underrated  Swiss 
submission  to  law.  But  the  law  to  which  Switzerland  is  accustomed  recognises  wide  dis- 
cretionary power  on  the  part  of  the  executive,  and  has  never  fully  severed  the  functions 
of  the  judge  from  those  of  the  government.  (Albert  Venn  Dicey,  Introduction  to  the  Study 
of  the  Law  of  the  Constitution,  1885,  8th  edition,  1915,  pp.  175-176.) 

We  live  under  a  peculiar  Government,  due  to  its  dual  character  and  limited  power. 
We  have  to  determine  in  this  country  not  only  what  we  ought  to  do,  but  what  we  can 
do,  because  we  have  a  Government  limited  both  as  to  which  sovereignty  shall  exercise 
the  power  and  limited  also  as  to  what  matters  can  be  dealt  with  at  all.  The  one  important 
original  idea  contained  in  the  Constitution  of  the  United  States  is  the  supremacy  that  is 
given  to  the  judiciary.  The  thing  that  makes  our  Constitution  unique  from  every  one 
in  the  world  is  the  fact  that  the  Supreme  Court  of  the  United  States  is  given  power  to 
say  if  the  other  branches  of  the  Government  have  exceeded  their  power ;  has  the  right 
to  declare  null  and  void  an  act  of  the  Legislature  of  the  National  Government ;  has  the 
right  to  have  disregarded  the  action  of  the  Executive  when  it  is  beyond  his  power ;  and 
has  the  further  right  to  say  when  the  States  have  exceeded  their  sovereign  powers.  That 
is  the  greatest  power  ever  given  to  a  tribunal,  and  it  is,  as  I  have  said,  the  one  great 
characteristic  of  the  American  Constitution,  and  to  it  we  owe  more  of  the  stability  and 
grandeur  of  this  country  than  to  any  other  provision  in  that  instrument. 

Those  who  have  read  the  history  of  America  know  that  the  real  law  of  America  is  what 
finally  exists  after  the  statutes  have  been  construed  and  passed  upon  by  the  courts  of 
the  land,  that  what  passes  Congress  does  not  necessarily  become  the  law  of  the  land. 
Through  the  decisions  of  the  Supreme  Court  the  Constitution,  open  to  many  constructions, 
was  so  interpreted  as  to  create  a  nation  with  power  over  matters  of  national  importance 
and  at  the  same  time  to  preserve  the  sovereign  States  and  their  sovereignty  over  those 
matters  peculiarly  pertaining  to  the  respective  States  and  not  to  the  nation  at  large. 
There  have  been  times  when  the  decisions  of  this  court  in  the  performance  of  its 
great  functions  have  aroused  great  excitement  and  at  times  great  indignation ;  but  with 
the  exception  of  the  Dred  Scott  case  [19  Howard,  393,  decided  in  1856]  nearly  every 
decision  of  that  court  undertaking  to  lay  down  the  limits  of  national  and  State  power 
has  met  with  the  final  approval  of  the  American  people;  and  today  it  may  not  be  inappro- 
priate, when  it  has  become  the  fashion  of  some  of  those  in  high  places  to  criticise  the 
judiciary,  to  call  attention  to  these  facts.  Certainly,  no  man  from  my  section  of  the  country 
should  ever  care  to  utter  a  condemnation  of  the  judiciary,  for  when  passion  ran  riot,  when 
men  had  lost  their  judgment,  when  the  results  of  four  years  of  bitter  war  produced  legis- 
lation aimed  not  at  justice,  but  frequently  at  punishment,  it  was  the  Supreme  Court  that 
stood  between  the  citizen  and  his  liberties  and  the  passion  of  the  hour.  And  I  trust  the 
day  will  never  come  when  the  American  people  will  not  be  willing  to  submit  respectfully 
and  gladly  to  the  decrees  of  that  august  tribunal.  Temporarily  they  may  seem  to  thwart 
the  will  of  the  people,  but  in  their  final  analysis  they  will  make,  as  they  have  made, 
for  orderly  government,  for  a  government  of  laws  and  not  of  men,  and  we  may  be  sure 
that  the  Supreme  Court  in  the  pure  atmosphere  of  judicial  inquiry  that  has  always  sur- 
rounded it  will  arrive  at  a  better  interpretation  of  the  powers  of  both  State  and  National 
Governments  than  can  be  possibly  hoped  for  in  a  forum  like  this,  where  popular  prejudice 
and  the  passions  of  the  hour  affect  all  of  us,  whether  we  will  or  no.  (Speech  of  the 
Honorable  Szvagar  Sherlcy,  of  Kentucky,  in  the  House  of  Representatives,  January  10, 
1908,  the  Congressional  Record,  Sixtieth  Congress,  First  Session,  Vol.  XLII,  1908, 
P-  589.) 


CHAPTER  XII 

CREATION    OF    THE    SUPREME    COURT 

When  the  convention  assembled  in  Philadelphia  in  the  month  of  May, 
1787,  to  eliminate  the  weaknesses  of  the  Confederation  and  to  correct  its 
faults,  it  was  evident  that  an  agency  of  a  judicial  nature  would  be  created, 
invested  with  the  right  and  the  duty  to  pass  upon  questions  of  an  interna- 
tional nature,  in  order  that  the  department  of  the  government  responsible 
for  foreign  affairs  should  not  be  embarrassed  by  what  might  be  called  a 
luxury  of  judicial  decision,  because  the  holdings  of  thirteen  courts  of  the 
States  on  one  and  the  same  international  question  whereof  they  might  take 
jurisdiction  would  embarrass  the  government,  whatever  its  form  might  be, 
and  prevent  foreign  nations  from  entering  into  relations  with  this  govern- 
ment when  the  relations  might  be  interpreted  by  one  of  the  contracting 
parties  in  some  thirteen  different  ways.  It  was  also  evident  that  this  agency  Necessity  for 
of  a  judicial  nature,  for  like  reasons,  would  be  entrusted  with  the  interpre-  judiciary 
tation  of  the  laws  of  the  Union,  because  the  right  assumed  and  exercised 
by  one  State  to  interpret  the  meaning  of  a  federal  law  meant  the  possibility 
of  thirteen  different  interpretations,  since  if  one  State  had  the  right  to 
interpret  such  a  law,  all  the  States  would  possess  this  right;  for,  whatever 
form  the  Union  might  take,  they  would  at  least  insist  upon  their  sovereignty 
and  equality  in  their  relations  one  with  another.  The  necessity  of  some  kind 
of  judicial  agency  of  a  confederate  character  had  been  recognized  and  had 
been  partially  met  in  the  9th  of  the  Articles  of  Confederation,  vesting  the 
United  States  in  Congress  assembled  with  the  right  to  appoint  courts  for 
the  trial  of  piracies  and  felonies  committed  upon  the  high  seas;  for  the 
trial  and  disposition  of  cases  of  capture  on  land  and  sea,  and  for  the  trial 
and  disposition  of  disputes  between  the  sovereign,  free  and  equal  States 
forming  the  Confederation. 

The  lack  of  an  adequate  agency  of  a  judicial  nature  was  one  of  the 
admitted  weaknesses  and  faults  of  the  perpetual  Union  created  by  the 
Articles  of  Confederation.  Indeed  a  very  keen  observer  and  one  whose 
opinion  is  law  in  this  matter  declared  that  the  want  of  an  adequate  judicial 
power  was  its  greatest  defect.  Thus,  Alexander  Hamilton  felt  himself  justi- 
fied in  saying  in  The  Federalist: 

A  circumstance,  which  crowns  the  defects  of  the  confederation,  remains 
yet  to  be  mentioned — the  want  of  a  judiciary  power.  Laws  are  a  dead 
letter,  without  courts  to  expound  and  define  their  true  meaning  and  opera- 

247 


248  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

tion.  The  treaties  of  the  United  States,  to  have  any  force  at  all,  must  be 
considered  as  part  of  the  law  of  the  land.  Their  true  import,  as  far  as 
respects  individuals,  must,  like  all  other  laws,  be  ascertained  by  judicial 
determinations.  To  produce  uniformity  in  these  determinations,  they  ought 
to  be  submitted  in  the  last  resort,  to  one  SUPREME  TRIBUNAL.  And  this 
tribunal  ought  to  be  instituted  under  the  same  authority  which  forms  the 
treaties  themselves.  These  ingredients  are  both  indispensable.  If  there  is 
in  each  state  a  court  of  final  jurisdiction,  there  may  be  as  many  different 
final  determinations  on  the  same  point,  as  there  are  courts.  There  are 
endless  diversities  in  the  opinions  of  men.  We  often  see  not  only  different 
courts,  but  the  judges  of  the  same  court,  differing  from  each  other.  To 
avoid  the  confusion  which  would  unavoidably  result  from  the  contradictory 
decisions  of  a  number  of  independent  judicatories,  all  nations  have  found 
it  necessary  to  establish  one  tribunal  paramount  to  the  rest,  possessing  a 
general  superintendance,  and  authorized  to  settle  and  declare  in  the  last 
resort  an  uniform  rule  of  civil  justice. 

This  is  the  more  necessary  where  the  frame  of  the  government  is  so 
compounded,  that  the  laws  of  the  whole  are  in  danger  of  being  contra- 
vened by  the  laws  of  the  parts.  In  this  case,  if  the  particular  tribunals 
are  invested  with  a  right  of  ultimate  decision,  besides  the  contradictions  to 
be  expected  from  difference  of  opinion,  there  will  be  much  to  fear  from 
the  bias  of  local  views  and  prejudices,  and  from  the  interference  of  local 
regulations.  As  often  as  such  an  interference  should  happen,  there  would 
be  reason  to  apprehend,  that  the  provisions  of  the  particular  laws 
might  be  preferred  to  those  of  the  general  laws,  from  the  deference  with 
which  men  in  office  naturally  look  up  to  that  authority  to  which  they  owe 
their  official  existence.  The  treaties  of  the  United  States,  under  the  present 
constitution,  are  liable  to  the  infractions  of  thirteen  different  legislatures, 
and  as  many  different  courts  of  final  jurisdiction,  acting  under  the  authority 
of  those  legislatures.  The  faith,  the  reputation,  the  peace  of  the  whole 
union,  are  thus  continually  at  the  mercy  of  the  prejudices,  the  passions, 
and  the  interests  of  every  member  of  which  these  are  composed.  Is  it 
possible  that  foreign  nations  can  either  respect  or  confide  in  such  a  gov- 
ernment ?  Is  it  possible  that  the  people  of  America  will  longer  consent  to 
trust  their  honour,  their  happiness,  their  safety,  on  so  precarious  a 
foundation?  * 

The  members  of  the  Confederation  were  thus  faced  with  the  problem  of 
devising  an  agent  of  a  judicial  nature  which,  while  adequate  for  the  pur- 
poses of  the  Union  in  its  international  aspect,  would  meet  the  approval  of 
the  thirteen  States,  holding  themselves  to  be  sovereign,  free  and  independent. 
The  problem  was  complicated  by  the  existence  of  this  sovereignty  whereof 
sovereignty  each  State  considered  itself  to  be  possessed,  as,  in  the  words  of  Hamilton, 

*  The  Federalist,  1802,  Vol.  I,  pp.  145-6.     Paper  xxii. 

In  a  later  paper  of  The  Federalist  the  principle  involved  in  uniform  determinations  is 
thus  expressed : 

If  there  are  such  things  as  political  axioms,  the  propriety  of  the  judicial  power  of  a 
government  being  co-extensive  with  its  legislative,  may  be  ranked  among  the  number.  The 
mere  necessity  of  uniformity  in  the  interpretation  of  the  national  laws  decides  the  question. 
Thirteen  independent  courts  of  final  jurisdiction  over  the  same  cause  arising  upon  the 
same  laws,  is  a  hydra  in  government,  from  which  nothing  but  contradiction  and  confusion 
can  proceed.     (Vol.  II,  p.  224,  Paper  lxxx.) 


CREATION    OF  THE   SUPREME    COURT  249 

again  expressed  in  The  Federalist,  "  It  is  inherent  in  the  nature  of  sov- 
ereignty, not  to  be  amenable  to  the  suit  of  an  individual  without  its  consent." 
In  this  passage  he  was  doubtless  making  a  concession  against  his  personal 
convictions,  and  lest  he  might  seem  to  be  renouncing  in  The  Federalist  views 
which  he  had  expressed  on  other  public  occasions,  he  hastened  to  add : 

This  is  the  general  sense,  and  the  general  practice  of  mankind ;  and  the 
exemption,  as  one  of  the  attributes  of  sovereignty,  is  now  enjoyed  by  the 
government  of  every  state  in  the  Union.  Unless,  therefore,  there  is  a  sur- 
render of  this  immunity  in  the  plan  of  the  convention  it  will  remain  with 
the  states.   .    .    -1 

The  men  who  met  in  conference  in  Philadelphia  during  the  summer 
months  of  1787  appreciated  this  crowning  weakness  of  the  Confederation, 
and  their  wisdom  and  ingenuity  met  and  overcame  the  difficulties  involved 
in  the  creation  of  a  Supreme  Court  of  a  Union  composed  of  States  retaining 
the  powers  which  they  did  not  expressly  grant  to  the  Government  of  the 
new  Union,  or  whose  exercise  would  not  be  incompatible  with  the  powers 
vested  in  the  Union,  by  necessary  implication,  or  of  which  they  had  not 
themselves  consented  to  renounce  the  exercise.  The  framers  of  the  Con- 
stitution followed  the  example  of  Solon,  the  renowned  law-giver  of  antiquity, 
who,  as  stated  by  one  of  the  members  of  the  Convention  in  the  course  of 
debate,  "gave  the  Athenians  not  the  best  Govt,  he  could  devise;  but  the 
best  they  wd.  receive."  2 

There  appears  to  have  been  not  merely  substantial  but  general  agreement 
that  there  should  be  an  adequate  judicial  agency  of  the  States,  and  there 
seems  also  to  have  been  no  opposition  to  its  creation.     There  was  much   Differences 

of  Opinion 

debate  and  difference  of  opinion  as  to  whether  the  judiciary  should  have 
original  or  whether  it  should  only  have  appellate  jurisdiction,  whether  it 
should  consist  of  one  supreme  court  to  which  appeals  should  be  made  from 
the  State  judiciaries,  or  whether  courts  inferior  to  the  Supreme  Court 
should  be  established  and  vested  with  jurisdiction  of  matters  of  an  interest 
to  the  States  as  a  whole.  There  was  also  much  difference  of  opinion  as  to 
the  appointment  of  the  members  of  the  judiciary,  some  advocating  their 
appointment  by  the  legislature,  others  by  the  executive;  still  others,  the 
executive  in  cooperation  therewith.  When,  however,  it  was  resolved  to  con- 
stitute a  court  for  the  existing  States  and  such  others  as  might  later  join  or 
be  added  to  the  Union,  the  problem  was  solved  in  principle,  and  all  other 
questions,  however  important  in  themselves,  became  matters  of  detail. 

As  has  been  seen,  there  were  two  great  plans  laid  before  the  Convention :   The  Two 

Plans 

1  Ibid.,  p.  238.    Paper  lxxxi. 

*  Documentary  History  of  the  Constitution,  Vol.  Ill,  p.  68.     Mr.  Butler,  session  of  lune 
S,  1787. 


250  THE   UNITED   STATES:    A   STUDY   IN    INTERNATIONAL   ORGANIZATION 

one,  the  Virginian  plan,  which  the  small  States  regarded  as  conceived  in 
the  interest  of  the  large  States;  and  the  other,  known  as  the  New  Jersey 
plan,  expressly  conceived  in  the  interest  of  the  smaller  States.  In  the  matter 
of  the  judiciary  there  was  likewise  a  difference  between  the  Virginian  and 
the  New  Jersey  plan,  but  both  plans  advocated  the  creation  of  a  judiciary. 
The  Virginian  The  Journal  of  the  Convention  states,  in  its  entry  of  May  29,  1787,  that 

"  Mr.  Randolph,  one  of  the  deputies  of  Virginia,  laid  before  the  house,  for 
their  consideration,  sundry  propositions,  in  writing,  concerning  the  Ameri- 
can confederation,  and  the  establishment  of  a  national  government,"  *  and 
it  was  ordered  that,  on  the  morrow,  "  the  propositions  this  day  laid  before 
the  house,  for  their  consideration,  by  Mr.  Randolph,"  be  referred  to  the 
said  Committee  of  the  whole  House  to  consider  the  state  of  the  American 
Union.2  James  Madison's  Notes,  the  chief  source  of  our  knowledge  of  the 
proceedings  of  the  Convention,  give  a  summary  of  these  resolutions,  which 
must  be  regarded  as  their  most  authentic  text,  as  unfortunately  the  original 
text  which  Mr.  Randolph  laid  before  the  Convention  has  not  been  preserved 
other  than  in  Mr.  Madison's  handwriting.  According  to  this  draft  it  was 
to  be  resolved  "  that  the  articles  of  Confederation  ought  to  be  so  corrected 
&  enlarged  as  to  accomplish  the  objects  proposed  by  their  institution; 
namely,  'common  defence,  security  of  liberty  and  general  welfare.'"3  To 
effect  these  objects,  a  national  legislature,  consisting  of  two  branches,  was 
to  be  formed,  a  national  executive  to  be  instituted,  and  a  national  judiciary 
to  be  established. 

It  is  to  be  observed,  in  this  connection,  that  the  very  first  draft  of  the 
new  instrument  of  government  provided  for  the  threefold  division  into  a 
legislative,  executive  and  judicial  department  thereof,  a  principle  borrowed, 
it  would  appear,  from  Montesquieu,  and  regarded  as  a  matter  of  faith  by 
Americans,  then  as  now.  The  article  on  the  judiciary,  as  given  by  Madison, 
reads : 

9.  Resd.  that  a  National  Judiciary  be  established  to  consist  of  one  or 
more  supreme  tribunals,  and  of  inferior  tribunals  to  be  chosen  by  the 
National  Legislature,  to  hold  their  offices  during  good  behaviour;  and  to 
receive  punctually  at  stated  times  fixed  compensation  for  their  services,  in 
which  no  increase  or  diminution  shall  be  made  so  as  to  affect  the  persons 
actually  in  office  at  the  time  of  such  increase  or  diminution,  that  the  juris- 
diction of  the  inferior  tribunals  shall  be  to  hear  &  determine  in  the  first 
instance,  and  of  the  supreme  tribunal  to  hear  and  determine  in  the  dernier 
resort,  all  piracies  &  felonies  on  the  high  seas,  captures  from  an  enemy; 
cases  in  which  foreigners  or  citizens  of  other  States  applying  to  such  juris- 
dictions may  be  interested,  or  which  respect  the  collection  of  the  National 

*  Journal  Acts  and  Proceedings  of  the  Convention.  1787.  (1819).  p.  66. 

'Ibid.,  pi)   70-1. 

'Documentary  History  of  the  Constitution,  Vol.  Ill,  p.  17. 


CREATION    OF  THE   SUPREME    COURT  251 

revenue ;  impeachments  of  any  National  officers,  and  questions  which  may 
involve  the  national  peace  and  harmony.1 

On  the  same  day  the  Journal  contains  the  following  entry : 

Mr.  Charles  Pinckney,  one  of  the  deputies  of  South  Carolina,  laid 
before  the  house  for  their  consideration,  the  draught  of  a  federal  govern- 
ment to  be  agreed  upon  between  the  free  and  independent  states  of 
America.2 

Unfortunately,  the  text  of  Mr.  Pinckney's  draft  is  not  preserved  in  the 
Journal  of  the  Convention  in  original  or  summary  form.  It  was  presented 
after  Mr.  Randolph's  propositions,  themselves  preceded  by  a  lengthy  address 
of  their  proposer.  It  was  doubtless  late  in  the  day,  so  that  Mr.  Pinckney 
did  not  have  time  to  accompany  them  with  an  address,  although  he  is 
reported  by  Robert  Yates,  in  his  notes  of  that  day,  as  saying  that  "  he  had 
reduced  his  ideas  of  a  new  government  to  a  system,  which  he  read,  and  con- 
fessed it  was  grounded  on  the  same  principle  as  of  the  above  resolutions."  3 
In  any  event,  the  text  of  Mr.  Pinckney's  plan  did  not  seem  to  impress  the 
members  present,  as  it  was  apparently  not  deemed  of  sufficient  importance, 
then  or  later,  to  be  abstracted  by  Mr.  Madison.  It  is  not  referred  to  in  the 
accounts  of  Mr.  McHenry  or  Mr.  Patterson,  both  of  whom  were  present 
and  made  careful  summaries  of  Mr.  Randolph's  proposals.  It  was  not 
adopted  or  considered  in  the  Conference,  other  than  to  be  referred,  appar- 
ently as  a  compliment,  to  the  Committee  of  Detail  along  with  Mr.  Ran- 
dolph's resolutions,  in  the  form  in  which  they  had  been  amended,  and  the 
New  Jersey  resolutions,  presented  by  Mr.  Patterson  for  such  consideration 
as  the  members  of  the  Committee  might  care  to  give  to  them. 

As  in  the  case  of  Mr.  Randolph's  original  propositions,  it  was  ordered 
"  that  the  said  draught  be  referred  to  the  committee  of  the  whole  house 
appointed  to  consider  of  the  state  of  the  American  union."  4  On  the  fol- 
lowing day,  Mr.  Randolph's  resolution  in  favor  of  a  national  government, 
consisting  of  a  legislative,  judicial  and  executive  department,  was  taken  up, 
on  which  there  is  the  following  record  in  the  Journal : 

Resolved,  That  a  national  government  ought  to  be  established,  consisting 
of  a  supreme  legislative,  judiciary,  and  executive.5 

On  June  4th  the  Convention  took  up  the  discussion  of  the  ninth  article 
of  Mr.  Randolph's  propositions,  which,  like  the  ninth  article  of  the  Con- 
federation, dealt  with  a  judiciary,  and  on  this  point  the  Journal  reads: 

1  Ibid.,  p.  19. 

'Journal  of  the  Convention,  p.  71. 

*  Robert  Yates,  Secret  Proceedings  and  Debates  of  the  Convention,  1821,  p.  97. 

'  Journal  of  the  Convention,  p.  81. 

'  Ibid.,  p.  82. 


252  THE   UNITED    STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

When,  on  motion  to  agree  to  the  first  clause,  namely, 
"  Resolved,  That  a  national  judiciary  be  established," 

It  passed  in  the  affirmative. 

It  was  then  moved  and  seconded  to  add  these  words  to  the  first  clause 
of  the  ninth  resolution,  namely, 

"  To  consist  of  one  supreme  tribunal,  and  of  one  or  more  inferior  tri- 
bunals." 

And  on  the  question  to  agree  to  the  same. 

It  passed  in  the  affirmative.1 

On  the  5th  of  June  the  Committee  of  the  Whole  further  considered  Mr. 
Randolph's  ninth  resolution,  and  in  the  matter  of  inferior  tribunals  struck 
out  the  words  "  one  or  more."  2  In  the  same  connection,  the  phrase  "  the 
national  legislature "  was  stricken,  leaving  the  question  of  selecting  the 
judges  to  be  decided  later;  so  that  the  ninth  resolution,  as  then  approved  by 
the  Committee,  read : 

Resolved,  That  a  national  judiciary  be  established  to  consist  of  one 
supreme  tribunal,  and  of  one  or  more  inferior  tribunals,  to  be  appointed 
by  ;  to  hold  their  offices  during  good  behaviour;  and  to 

receive  punctually,  at  stated  times,  a  fixed  compensation  for  their  services, 
in  which  no  increase  or  diminution  shall  be  made,  so  as  to  affect  the  per- 
sons actually  in  office,  at  the  time  of  such  increase  or  diminution. 

Further  consideration  of  the  resolution  was  postponed. 

Later  in  the  day  the  Convention  returned  to  the  ninth  article,  and  on 
motion  of  John  Rutledge,  later  Chief  Justice  of  the  United  States,  seconded 
by  Roger  Sherman  of  Connecticut,  who  has  the  unique  distinction  of  having 
signed  the  Declaration  of  Independence,  the  Articles  of  Confederation  and 
the  Constitution  of  the  United  States,  that  portion  of  Mr.  Randolph's  reso- 
lution relating  to  inferior  tribunals  was  rejected  and  the  following  additional 
clause  was  added  to  the  resolution : 

That  the  national  legislature  be  empowered  to  appoint  inferior  tribunals.3 

The  proposition  to  limit  the  judicial  power  of  the  United  States  to  one 
supreme  tribunal,  without  inferior  courts  as  proposed  by  Mr.  Rutledge,  and 
accepted  for  the  time  being  by  the  Convention,  was  a  matter  of  great  impor- 
tance and  was  justly  considered  as  such.  James  Madison,  a  future  presi- 
dent, and  James  Wilson,  a  future  justice  of  the  Supreme  Court,  took  issue, 
and  with  the  support  of  John  Dickinson  and  Rufus  King  eventually  car- 
ried  the   point   against   Messrs.    Rutledge   and    Sherman.      Mr.    Madison's 

1  Journal  of  the  Convention,  p.  98. 
1  Ibid.,  p.  99. 
'  Ibid.,  p.  102. 


CREATION    OF  THE   SUPREME    COURT  253 

Notes  fortunately  give,  although  very  briefly,  the  views  of  the  different 
members.     Thus,  John  Rutledge  argued: 

That  the  State  Tribunals  might  and  ought  to  be  left  in  all  cases  to 
decide  in  the  first  instance  the  right  of  appeal  to  the  supreme  national  tri- 
bunal being  sufficient  to  secure  the  national  rights  &  uniformity  of  Judgm,s. 
that  it  was  making  an  unnecessary  encroachment  on  the  jurisdiction  of  the 
States,  and  creating  unnecessary  obstacles  to  their  adoption  of  the  new 
system.1 

Upon  this,  Mr.  Madison,  to  quote  his  Notes  again, 

observed  that  unless  inferior  tribunals  were  dispersed  throughout  the 
Republic  with  final  jurisdiction  in  many  cases,  appeals  would  be  multiplied 
to  a  most  oppressive  degree ;  that  besides,  an  appeal  would  not  in  many 
cases  be  a  remedy.  What  was  to  be  done  after  improper  Verdicts  in  State 
tribunals  obtained  under  the  biased  directions  of  a  dependent  Judge,  or  the 
local  prejudices  of  an  undirected  jury?  To  remand  the  cause  for  a  new 
trial  would  answer  no  purpose.  To  order  a  new  trial  at  the  supreme  bar 
would  oblige  the  parties  to  bring  up  their  witnesses,  tho'  ever  so  distant 
from  the  seat  of  the  Court.  An  effective  Judiciary  establishment  com- 
mensurate to  the  legislative  authority,  was  essential.  A  Government  with- 
out a  proper  Executive  &  Judiciary  would  be  the  mere  trunk  of  a  body 
without  arms  or  legs  to  act  or  move.2 

The  difficulty  was  real  and  serious,  yet  capable  of  solution,  for  the 
power  might  be  granted,  leaving  it  to  the  future  to  determine  whether  it 
should  be  exercised  or  not.  This  solution  appears  to  have  been  suggested  by 
Mr.  Dickinson,  who  is  represented  by  Mr.  Madison  as  contending  "  strongly 
that  if  there  was  to  be  a  National  Legislature,  there  ought  to  be  a  national 
Judiciary,  and  that  the  former  ought  to  have  authority  to  institute  the 
latter."  3 

Upon  the  passing  of  Mr.  Rutledge's  motion  to  strike  out  "  inferior  tri- 
bunals," Messrs.  Wilson  and  Madison  "  then  moved,  in  pursuance  of  the 
idea  expressed  above  by  Mr.  Dickinson," 

to  add  to  Resol :  9.  the  words  following  "  that  the  National  Legislature  be 
empowered  to  institute  inferior  tribunals."  They  observed  that  there  was 
a  distinction  between  establishing  such  tribunals  absolutely,  and  giving  a 
discretion  to  the  Legislature  to  establish  or  not  establish  them.  They 
repeated  the  necessity  of  some  such  provision.4 

This  motion  was  carried,  which  did  not  direct  but,  what  would  of  necessity 
amount  to  the  same  thing  in  the  course  of  time,  empowered  the  legislature 
to  institute  inferior  tribunals. 

1  Documentary  History,  Vol.  Ill,  p.  67. 

*  Ibid. 

8  Ibid.,  p.  68. 

'  Ibid. 


254  THE   UNITED    STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

On  June  12th  the  matter  of  the  judiciary  was  again  taken  up,  and  on 
the  day  following  Mr.  Randolph's  ninth  resolution  was  approved  in  the  form 
which  it  had  assumed  as  the  result  of  discussion  and  debate  in  the  Com- 
mittee of  the  Whole.1  On  the  first  of  these  days  the  resolution  fared  very 
badly.  The  proceedings  on  June  12th  were  negatived;  not  merely  were  the 
leaves  plucked  from  the  branches,  but  the  branches  themselves  were  torn 
from  the  trunk,  reminding  one  very  much  of  Dr.  Franklin's  famous  anec- 
dote anent  "  John  Thompson,  Hatter,  makes  and  sells  hats  for  ready 
money,"  which  simple  sign,  when  revised,  had  lost  the  statement  that  John 
Thompson  sold  hats  and  made  hats,  and  left  the  sign  with  but  a  picture  of 
a  hat  to  indicate  what  manner  of  man  he  was  and  what  calling  John 
Thompson  followed.2  Thus,  to  quote  Madison's  Notes,  which  are  usually 
fuller  than  on  this  occasion: 

It  was  moved  &  2ded.  to  alter  Resol :  9.  so  as  to  read  "  that  the  jurisdiction 
of  the  supreme  tribunal  shall  be  to  hear  &  determine  in  the  dernier  resort,  all 
piracies,  felonies,  &c  " 

It  was  moved  &  2ded.  to  strike  out  "  all  piracies  &  felonies  on  the  high 
seas,"  which  was  agreed  to. 

It  was  moved  &  agreed  to  strike  out  "  all  captures  from  an  enemy." 

It  was  moved  and  agreed  to  strike  out  "  other  States  "  and  insert  "  two 
distinct  States  of  the  Union." 

It  was  moved  &  agreed  to  postpone  the  consideration  of  Resolution  9. 
relating  to  the  Judiciary : 3 

After  this,  it  is  no  wonder  that,  to  quote  the  concluding  line  of  Mr.  Madison's 
entry  for  the  day,  "  The  Come.  then  rose  &  the  House  adjourned." 

This  does  not  mean,  however,  that  there  was  opposition  to  the  court  or 
to  its  jurisdiction,  but  that  the  Convention  was  pursuing  the  course  of 
international  conferences  and  of  large  bodies,  in  which  broad  principles 
are  proposed  and  debated  to  advantage  and  matters  of  detail  are  referred 
to  a  smaller  body  for  consideration  and  report.  The  first  entry  in  Mr. 
Madison's  Notes  for  the  next  day,  June  13th,  shows  that  the  leaders  of  the 
Convention  had  come  to  this  conclusion,  for,  the  consideration  of  the  ninth 
resolution  being  resumed,  "  the  latter  parts  of  the  clause  relating  to  the  juris- 
diction of  the  Nat1,  tribunals  was  struck  out  nem.  con  in  order  to  leave  full 
room  for  their  organization."  4  We  do  not  need  to  speculate  as  to  the  reason 
for  this  motion  on  behalf  of  its  sponsors,  as  it  is  specifically  stated  in  Robert 
Yates'  notes  of  the  13th,  which  on  this  point  are  more  elaborate  than  usual 
and  more  satisfactory  than  Mr.  Madison's.     Thus,  according  to  Mr.  Yates: 

1  Documentary  History,  Vol.  Ill,  p.   122. 

'  A.  H.  Smyth,  The  Writings  of  Benjamin  Franklin,  Vol.  I.  pp.  38-9. 

"  Documentary  History,  Vol.  Ill,  p.  117. 

4  Ibid. 


CREATION    OF   THE   SUPREME    COURT  255 

Gov.  Randolph  observed  the  difficulty  in  establishing  the  powers  of  the 
judiciary  —  the  object  however  at  present  is  to  establish  this  principle,  to 
wit,  the  security  of  foreigners  where  treaties  are  in  their  favor,  and  to  pre- 
serve the  harmony  of  states  and  that  of  the  citizens  thereof.  This  being 
once  established,  it  will  be  the  business  of  a  sub-committee  to  detail  it ;  and 
therefore  moved  to  obliterate  such  parts  of  the  resolve  so  as  only  to  establish 
the  principle,  to  wit,  that  the  jurisdiction  of  the  national  judiciary  shall 
extend  to  all  cases  of  national  revenue,  impeachment  of  national  officers,  and 
questions  which  involve  the  national  peace  or  harmony.  Agreed  to  unani- 
mously.1 

The  indefatigable  Mr.  Pinckney  and  the  experienced  Mr.  Sherman  thereupon 
moved  that  the  judges  of  this  supreme  tribunal  should  be  appointed  by  the 
national  legislature.     Mr.  Madison,  as  recorded  in  his  Notes, 

objected  to  an  app'.  by  the  whole  Legislature.  Many  of  them  were  incom- 
petent Judges  of  the  requisite  qualifications.  They  were  too  much  influ- 
ended  by  their  partialities.  The  candidate  who  was  present,  who  had  dis- 
played a  talent  for  business  in  the  legislative  field,  who  had  perhaps  assisted 
ignorant  members  in  business  of  their  own,  or  of  their  Constituents,  or 
used  other  winning  means,  would  without  any  of  the  essential  qualifications 
for  an  expositor  of  the  laws  prevail  over  a  competitor  not  having  these 
recommendations,   but  possessed   of   every  necessary  accomplishment.     He 

f>roposed  that  the  appointment  should  be  made  by  the  Senate,  which  as  a 
ess  numerous  &  more  select  body,  would  be  more  competent  judges,  and 
which  was  sufficiently  numerous  to  justify  such  a  confidence  in  them.2 

Messrs.  Pinckney  and  Sherman  were  convinced  by  this  statement,  as  was 
also  the  Convention,  which  approved  for  the  moment  the  appointment  by 
the  Senate.  At  this  session,  on  the  13th  of  June,  the  Committee  of  the  Whole 
reported  on  Mr.  Randolph's  propositions  as  approved  by  it,  of  which  the 
portions  concerning  the  matter  in  hand  are  as  follows: 

11.  Resold  that  a  Nat.1  Judiciary  be  established,  to  consist  of  one  supreme 
tribunal,  the  Judges  of  which  to  be  appointed  by  the  2d.  branch  of  the  Nat1. 
Legislature,  to  hold  their  offices  during  good  behaviour,  &  to  receive  punctu- 
ally at  stated  times  a  fixed  compensation  for  their  services,  in  which  no 
increase  or  diminution  shall  be  made,  so  as  to  affect  the  persons  actually 
in  office  at  the  time  of  such  increase  or  diminution. 

12.  Resold.  that  the  Nat1.  Legislature  be  empowered  to  appoint  inferior 
Tribunals. 

Resd.  that  the  jurisdiction  of  the  Nat1.  Judiciary  shall  extend  to  all  cases 
which  respect  the  collection  of  the  Nat1,  revenue,  impeachments  of  any 
Nat1.  Officers,  and  questions  which  involve  the  national  peace  &  harmony.3 

So  matters  stood  when  the  smaller  States,  which  had  remained  in  the 
background  and  contented  themselves  with  amending  the  propositions  of  the 

1  Secret  Proceedings  and  Debates,  pp.  119,  120. 
'Documentary  History,  Vol.  Ill,  p.  118. 
"Ibid.,  p.  122. 


256  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

larger  States,  began  not  only  to  gather  confidence  and  to  play  a  larger  part 
in  the  proceedings,  but  to  present  a  plan,  conceived  in  their  interests,  as  they 
believed  the  Virginian  plan  to  be  conceived  in  the  interests  of  the  larger 
States.  The  Virginian  plan,  as  originally  submitted  and  amended  in  the 
Committee  of  the  Whole,  did  not  please  the  delegates  of  the  smaller  States, 
of  which  Mr.  William  Patterson,  later  a  Senator  from  New  Jersey  and  a 
Justice  of  the  Supreme  Court  under  the  Constitution,  may  be  considered  the 
mouthpiece,  and  who,  after  conference  with  friends  who  shared  his  views, 
and  in  their  behalf,  presented  on  the  15th  day  of  June  what  is  generally 
called  the  New  Jersey  plan.  This  plan  admitted  the  defects  of  the  Con- 
New  jersey  federation  and  recognized  that  the  Articles  thereof  could  and,  as  expressed 
in  the  first  proposition  of  the  New  Jersey  plan,  "  ought  to  be  so  revised,  cor- 
rected &  enlarged,  as  to  render  the  federal  Constitution  adequate  to  the 
exigencies  of  Government,  &  the  preservation  of  the  Union."  1  The  Con- 
gress was  to  be  authorized  "  to  pass  Acts  for  the  regulation  of  trade  &  com- 
merce as  well  with  foreign  nations  as  with  each  other :  provided  that  all 
punishments,  fines,  forfeitures  &  penalties  to  be  incurred  for  contravening 
such  acts  rules  and  regulations  shall  be  adjudged  by  the  Common  law 
Judiciarys  of  the  State  in  which  any  offence  contrary  to  the  true  intent  & 
meaning  of  such  Acts  rules  &  regulations  shall  have  been  committed  or  per- 
petrated, with  liberty  of  commencing  in  the  first  instance  all  suits  &  prosecu- 
tions for  that  purpose  in  the  superior  Common  law  Judiciary  in  such  State, 
subject  nevertheless,  for  the  correction  of  all  errors,  both  in  law  &  fact  in 
rendering  judgment,  to  an  appeal  to  the  Judiciary  of  the  U.  States."  2 

According  to  this  plan,  the  Government  of  the  Union  was  to  avail  itself 
of  the  courts  of  the  States  composing  it,  not  to  create  agencies  of  its  own 
in  the  shape  of  inferior  courts,  from  which  an  appeal  would  naturally  lie  to 
the  supreme  federal  tribunal.  This  supreme  court,  called  in  the  plan 
"  tribunal,"  its  nature,  the  extent  of  its  jurisdiction  and  the  qualifications  for 
its  judges  are  defined  in  the  5th  article,  which  reads: 

Resd.  that  a  federal  Judiciary  be  established  to  consist  of  a  supreme 
Tribunal  the  Judges  of  which  to  be  appointed  by  the  Executive,  &  to  hold 
their  offices  during  good  behaviour,  to  receive  punctually  at  stated  times  a 
fixed  compensation  for  their  services  in  which  no  increase  or  diminution 
shall  be  made,  so  as  to  affect  the  persons  actually  in  office  at  the  time  of 
such  increase  or  diminution;  that  the  Judiciary  so  established  shall  have 
authority  to  hear  &  determine  in  the  first  instance  on  all  impeachments  of 
federal  officers,  &  by  way  of  appeal  in  the  dernier  resort  in  all  cases  touch- 
ing the  rights  of  Ambassadors,  in  all  cases  of  captures  from  an  enemy, 
in  all  cases  of  piracies  &  felonies  on  the  high  seas,  in  all  cases  in  which 

1  Documentary  History,  Vol.  Ill,  p.  125. 
1  Ibid.,  pp.  125-6. 


CREATION    OF  THE   SUPREME    COURT  257 

foreigners  may  be  interested,  in  the  construction  of  any  treaty  or  treaties, 
or  which  may  arise  on  any  of  the  Acts  for  regulation  of  trade,  or  the 
collection  of  the  federal  Revenue ;  that  none  of  the  Judiciary  shall  during 
the  time  they  remain  in  Office  be  capable  of  receiving  or  holding  any  other 
office  or  appointment  during  their  time  of  service,  or  for  there- 

after.1 

But  this  was  not  all.  The  sixth  article  contained  a  very  fruitful  sugges- 
tion, which  was  destined  to  replace  the  proposal  of  a  negative  on  the  laws  of 
the  State  or  on  the  laws  of  Congress,  either  by  the  National  Legislature  or 
a  Council  of  Revision,  and,  acting  upon  individuals,  makes  a  resort  to  force 
against  the  States,  contained  in  the  last  clause  of  the  Article,  unnecessary  as 
it  was  always  inexpedient,  although  originally  espoused  by  such  a  man  as 
Mr.   Madison.     Thus: 

6.  Resd.  that  all  Acts  of  the  U.  States  in  Congs.  made  by  virtue  &  in 
in  pursuance  of  the  powers  hereby  &  by  the  articles  of  confederation  vested 
in  them,  and  all  Treaties  made  &  ratified  under  the  authority  of  the  U. 
States  shall  be  the  supreme  law  of  the  respective  States  so  far  forth  as 
those  Acts  or  Treaties  shall  relate  to  the  said  States  or  their  Citizens,  and 
that  the  Judiciary  of  the  several  States  shall  be  bound  thereby  in  their 
decisions,  any  thing  in  the  respective  laws  of  the  Individual  States  to  the 
contrary  notwithstanding;  and  that  if  any  State,  or  any  body  of  men  in  any 
State  shall  oppose  or  prevent  ye.  carrying  into  execution  such  acts  or  treaties, 
the  federal  Executive  shall  be  authorized  to  call  forth  ye  power  of  the  Con- 
federated States,  or  so  much  thereof  as  may  be  necessary  to  enforce  and 
compel  an  obedience  to  such  Acts,  or  an  Observance  of  such  Treaties.2 

It  was  recognized  that  these  propositions  could  not  be  rejected  off-hand, 
even  although  a  majority  of  the  Convention  favored  the  Virginian  plan. 
It  was  therefore  agreed  that  the  propositions  which  Mr.  Patterson  had  intro- 
duced as  a  substitute  for  Mr.  Randolph's  should  be  referred  to  a  Committee 
of  the  Whole,  and  the  Randolph  plan  was  likewise  recommitted  "  in  order 
to  place  the  two  plans  in  due  comparison."  3 

On  Tuly  18th  the  Convention  took  up  the  question  of  the  judiciary  and    Question  of 

J       J  Appointment 

considered  the  eleventh,  twelfth  and  thirteenth  resolutions  of  Mr.  Randolph's  of  judges 
plan,  as  modified  by  the  Committee  of  the  Whole,  in  preference  to  Mr.  Patter- 
son's plan,  which,  however,  had  been  very  carefully  considered  in  the  mean- 
time. There  was  no  dissent  to  the  formation  of  a  national  judiciary  or 
to  the  proposition  that  this  judiciary  should  consist  of  one  supreme  tribunal, 
but  the  debate  turned  upon  the  appointment  of  the  judges,  an  embarrassing, 
difficult  and  delicate  matter.     The  views  on  this  point  were  divergent,  some 


1  Ibid.,  p.  127. 

2  Ibid.,  pp.  127-8. 
'  Ibid.,  p.  124. 


258  THE    UNITED    STATES:   A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

members  advocating  appointment  by  the  legislature,  others  by  the  second 
house,  some  by  the  executive  and  still  others  preferring  Mr.  Gorham's  sug- 
gestion that  the  "  Judges  be  appointed  by  the  Execuve.  with  the  advice  & 
consent  of  the  2d  branch,  in  the  mode  prescribed  by  the  constitution  of 
Masts."  l  Mr.  Gorham  stated  as  a  fact  that  "  this  mode  had  been  long  prac- 
ticed in  that  country,  &  was  found  to  answer  perfectly  well."  It  has  since 
been  practiced  in  the  United  States  and  has  likewise  been  found  to  answer 
equally  well. 

After  much  debate  without  reaching  an  agreement,  and  the  rejection  of 
Mr.  Wilson's  motion  leaving  the  appointment  of  the  judges  to  the  executive 
instead  of  to  the  second  branch,  Mr.  Gorham  moved  "  that  the  Judges  be 
nominated  and  appointed  by  the  Executive,  by  &  with  the  advice  &  consent 
of  the  2d  branch  &  every  such  nomination  shall  be  made  at  least  days 

prior  to  such  appointment." 2  "  This  mode,"  he  said,  according  to  Mr. 
Madison's  Notes,  "  had  been  ratified  by  the  experience  of  140  years  in  Massa- 
chusetts. If  the  app'.  should  be  left  to  either  branch  of  the  Legislature,  it 
will  be  a  mere  piece  of  jobbing." 

The  Convention  tied  on  Mr.  Gorham's  motion,  thereby  defeating  it,3 
whereupon  Mr.  Madison  moved  that  "  the  Judges  should  be  nominated 
by  the  Executive,  &  such  nomination  should  become  an  appointment  if  not 
disagreed  to  within  days  by  %  of  the  2d  branch."    On  the  21st  of  the 

month  it  was  considered  in  a  slightly  amended  form  and  in  its  stead  a  motion 
was  adopted  that  "  the  judges  of  which  shall  be  appointed  by  the  second 
branch  of  the  national  legislature."  4  An  agreement  on  this  vexed  question 
was  therefore  very  difficult. 

The  clause  of  the  eleventh  resolution,  that  the  judges  "  hold  their  office 
during  good  behaviour  "  was  unanimously  adopted,  as  was  also  the  clause 
concerning  the  punctual  payment  of  their  salaries.  It  will  be  recalled  that, 
as  worded,  this  clause  prevented  an  increase  or  diminution  of  the  salaries 
of  the  judges  during  their  tenure  of  office.  After  much  discussion  and  no 
little  misgiving  it  was  decided,  and  wisely,  by  a  vote  of  6  to  2,  to  strike  out 
the  provision  against  the  increase  of  salaries,  and  as  thus  amended  this  por- 
tion of  the  resolution  passed  unanimously.6 

The  framers  of  the  Constitution  had  decided  upon  a  division  of  power 
within  the  Government  of  the  Union,  and,  for  the  protection  of  the  judiciary 
as  well  as  for  the  impartial  administration  of  justice,  they  were  anxious 
that  the  judges,  when  and  however  selected,  should  be  independent  of  the 

1  Documentary  History,  Vol.  Ill,  p.  363. 
*  Ibid.,  p.  366. 
'  Ibid.,  p.  367. 


*  Journal  of  the  Convention,  p.  196. 

"Documentary  History,  Vol.  Ill,  pp.  363-8.     Session  of  July  18. 


CREATION    OF  THE   SUPREME    COURT  259 

appointing  power.  Therefore,  they  were  to  hold  office  during  good  behavior 
and  during  their  tenure  of  office  they  were  to  receive  salaries  which  assuredly 
should  not  be  decreased,  if  indeed  they  might  be  increased,  during  their 
tenure  of  office,  even  although  they  might  depend  upon  the  pleasure  or  dis- 
cretion of  one  or  the  other  branch  of  the  Government  for  their  appointment. 
The  experience  of  colonial  days  had  shown  them  the  wisdom  if  not  the 
necessity  of  this  action  on  their  part;  but  if  they  had  forgotten  it,  they  had 
an  object  lesson  before  their  very  eyes,  for  in  the  preceding  year  the  judges 
of  Rhode  Island,  who  had  declared  a  law  of  that  State  to  be  unconstitutional 
in  the  case  of  Trevett  v.  Weeden,  were  summoned  before  the  Assembly  "  to 
render  their  reasons  for  adjudging  an  act  of  the  General  Assembly  to  be  un- 
constitutional and  so  void."  *  Although  no  action  was  taken  against  them 
they  were  not  reelected  by  the  Legislature  at  the  expiration  of  their  terms  in 
the  spring  of  the  very  year  in  which  the  Federal  Convention  met  in  Phila- 
delphia. 

The  12th  resolution,  empowering  Congress  to  institute  inferior  tri- 
bunals, was  equally  fortunate,  although  it  was  objected  to,  Mr.  Sherman 
saying  that  he  was  "  willing  to  give  the  power  to  the  Legislature  but  wished 
them  to  make  use  of  the  State  Tribunals  whenever  it  could  be  done  with 
safety  to  the  general  interest."  2  But  the  views  tersely  expressed  by  George 
Mason  apparently  carried  conviction,  that  "  many  circumstances  might  arise 
not  now  to  be  foreseen,  which  might  render  such  a  power  absolutely  neces- 
sary." 3 

The  clause  in  the  13th  resolution,  relating  to  the  impeachment  of  national 
officers,  was  struck  out,  and  "  several  criticisms,"  to  quote  Mr.  Madison's 
Notes,  "  having  been  made  on  the  definitions  "  of  the  jurisdiction  of  the 
national  judiciary,  it  was,  with  the  approval  of  the  Convention,  recast  by 
Mr.  Madison  so  as  to  read,  "  that  the  jurisdiction  shall  extend  to  all  cases 
arising  under  the  Nat1,  laws :  And  to  such  other  questions  as  may  involve  the 
Nat1,  peace  &  harmony."  4 

There  seems  to  have  been  a  tacit  understanding  that,  although  the  gen- 
eral principles  of  the  Constitution  should  be  considered  in  the  Committee  of 

1  Brinton  Coxe,  Judicial  Power  and  Unconstitutional  Legislation,  1893,  p.  246. 

In  the  session  of  July  17th  of  the  Federal  Convention  of  1787,  Mr.  Madison  said,  with 
direct  reference  to  the  case  of  Trevett  v.  Weeden, 

Confidence  cannot  be  put  in  the  State  Tribunals  as  guardians  of  the  National  au- 
thority and  interests.  In  all  the  States  these  are  more  or  less  depend',  on  the  Legisla- 
tures. In  Georgia  they  are  appointed  annually  by  the  Legislature.  In  R.  Island  the 
Judges  who  refused  to  execute  an  unconstitutional  law  were  displaced,  and  others  sub- 
stituted, by  the  Legislature  who  would  be  willing  instruments  of  the  wicked  &  arbitrary 
plans  of  their  masters.  Documentary  History,  Vol.  Ill,  p.  352.  Also,  J.  B.  Scott, 
Judicial  Settlement  of  Controversies  between  States,  Vol.  I,  pp.  101-3. 

2  Documentary  History,  Vol.  Ill,  p.  369. 
*  Ibid. 

4  Ibid. 


of   Detail 


260  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL    ORGANIZATION 

the  Whole,  where  the  discussion  was  more  informal  than  in  the  Convention 
itself,  and  although  the  Convention  should  formally  pass  upon  each  clause 
of  the  Constitution,  it  would  be  necessary  to  refer  the  resolutions  agreed 
upon  to  some  committee  which  should  elaborate  them,  devise  the  frame- 
work of  the  Constitution,  and  insert  them  in  the  form  of  articles  in  the 
order  which  they  might  properly  assume  in  an  instrument  of  that  kind. 
Therefore,  on  July  23rd,  a  motion  was  made  and  unanimously  agreed  to  that 
"  the  proceedings  of  the  Convention  for  the  establishment  of  a  Nat1.  Gov', 
except  the  part  relating  to  the  Executive),  be  referred  to  a  Committee  to 
prepare  &  report  a  Constitution  conformable  thereto."  1  This  motion  was 
unanimously  agreed  to,  and,  recognizing  from  their  own  experience  in  the 
Convention  that  a  small  committee  was  more  effective  than  a  large  one,  it 
was  unanimously  resolved  that  the  committee  should  consist  of  five  members, 
Committee  to  be  appointed  on  the  morrow.     Therefore,  on  the  24th,  the  five  members 

to  compose  the  committee  to  report  a  constitution  were  elected  by  ballot : 
Messrs.  Rutledge,  Randolph,  Gorham,  Ellsworth,  and  Wilson.  It  was  like- 
wise felt  that  the  committee  should  have  before  it  the  projects  relating  to  a 
constitution  which  had  been  presented  by  Mr.  Pinckney  in  his  own  behalf  and 
by  Mr.  Patterson  on  behalf  of  the  smaller  States.  They  were  therefore 
referred  to  this  committee,  henceforth  known  as  the  Committee  of  De- 
tail.2 

Inasmuch  as  the  motion  to  refer  the  resolutions  agreed  upon  was  passed  on 
the  23d,  and  as  it  was  desirable  that  the  committee  should  have  before  it 
any  resolutions  agreed  to  since  that  date,  it  was  decided  on  the  26th  to  refer 
these  as  well  to  the  Committee  of  Detail,  and,  in  order  to  give  its  members 
an  opportunity  to  consider  the  projects  and  to  report  a  draft  of  a  constitu- 
tion, the  Convention  adjourned  to  August  6th. 

In  the  very  short  period  of  ten  days,  between  the  26th  of  July  and  the 
6th  of  August,  the  committee  was  able  to  report  an  instrument  which  bears 
very  strong  resemblance  to  the  present  Constitution  of  the  United  States. 
On  that  day  the  Convention  met  and  each  member  was  provided  with  a 
printed  draft  which,  amended  and  improved  in  many  ways,  became  the  actual 
Constitution.  We  do  not  know  just  what  took  place  in  the  Committee  of 
Detail  during  the  intervening  ten  days,  other  than  that  the  Committee  com- 
plied with  the  directions  of  the  Convention  to  prepare  and  to  report  a  draft 
"  conformable  to  the  resolutions  passed  by  the  Convention."  A  very  careful 
and  critical  examination  of  the  papers  and  documents  which  have  been 
preserved  in  various  ways,  and  which  have  come  to  light  in  the  course  of 
the  last  few  years,  has  enabled  students  of  the  Constitution  to  divine,  where 

1  Documentary  History,  Vol.  Ill,  pp.  413-14. 
"  Ibid.,  p.  423. 


CREATION    OF  THE   SUPREME    COURT  261 

they  can  not  actually  describe,  the  method  of  procedure.1  Among  the  papers 
of  George  Mason,  a  member  of  the  Convention,  there  was  found  a  paper  in 
Mr.  Randolph's  handwriting,  of  which  certain  parts  have  been  identified 
as  the  handwriting  of  John  Rutledge.  Among  the  papers  in  the  possession 
of  James  Wilson,  a  member  of  the  Committee  of  Detail,  there  were  various 
documents,  one  of  which  is  a  draft  of  the  Constitution  in  Wilson's  hand- 
writing, which  seems  to  have  incorporated  in  it  certain  portions  of  the 
Pinckney  draft  and  of  the  New  Jersey  plan.  It  has  been  concluded  that  the 
Committee  of  Detail,  under  Mr.  Rutledge's  chairmanship,  took  up  the  reso- 
lutions of  the  Convention  as  referred;  that,  after  discussion  and  debate,  and 
agreement  upon  a  general  plan,  the  resolutions  were  referred  to  Mr.  Ran- 
dolph, the  sponsor  of  the  Virginian  plan  although  he  is  not  to  be  credited  with 
its  authorship;  that  Mr.  Randolph  prepared  the  instrument  in  his  handwrit- 
ing, which  is  found  to  be  the  first  draft  of  the  Constitution,  together  with 
suggestions  and  criticisms;  that  this  draft  was  laid  before  the  Committee  of 
Detail,  considered  by  it,  and  modifications  thereof  inserted  in  the  document  in 
the  handwriting  of  Mr.  Rutledge,  its  chairman;  that  at  a  later  stage,  James 
Wilson,  with  the  amended  Randolph  draft  before  him  and  the  Pinckney  and 
Patterson  propositions,  prepared  an  enlarged  and  revised  draft.  This,  called- 
the  Wilson  draft,  was  likewise  amended  by  the  committee  and  the  changes 
incorporated  in  it  appear  to  be  in  the  handwriting  of  Mr.  Rutledge,  its 
chairman. 

Be  this  as  it  may,  the  printed  report  of  the  committee  was  laid  before 
the  Convention,  and  a  printed  copy  of  the  report  was  at  the  same  time  fur- 
nished to  each  member. 

The  articles  of  the  draft  concerning  the  judiciary,  the  Supreme  Court   Draft 
and  inferior  courts  are  as  follows : 

VII 

Sect.  1.  The  Legislature  of  the  United  States  shall  have  the  power  .  .   . 
To  constitute  tribunals  inferior  to  the  Supreme  Court;  .    .    . 

VIII 

The  Acts  of  the  Legislature  of  the  United  States  made  in  pursuance  of 
this  Constitution,  and  all  treaties  made  under  the  authority  of  the  United 
States  shall  be  the  supreme  law  of  the  several  States,  and  of  their  citizens 
and  inhabitants ;  and  the  judges  in  the  several  States  shall  be  bound  thereby 
in  their  decisions ;  anything  in  the  Constitutions  or  laws  of  the  several  States 
to  the  contrary  notwithstanding. 

1  See  Max  Farrand,  The  Framing  of  the  Constitution  of  the  United  States,  Chapters 
IX  and  X ;  also,  J.  Franklin  Jameson,  Studies  in  the  History  of  the  Federal  Convention 
of  1787,  in  Annual  Report  of  the  American  Historical  Association,  1902,  Vol.  I,  pp.  89-167. 


262  THE   UNITED    STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

IX 

Sect.  1.  The  Senate  of  the  United  States  shall  have  power  ....  to 
appoint  ....  Judges  of  the  supreme  Court. 

Sect.  2.  In  all  disputes  and  controversies  now  subsisting,  or  that  may 
hereafter  subsist  between  two  or  more  States,  respecting  jurisdiction  or  ter- 
ritory, the  Senate  shall  possess  the  following  powers.  Whenever  the  Legis- 
lature, or  the  Executive  authority,  or  lawful  Agent  of  any  State,  in  con- 
troversy with  another,  shall  by  memorial  to  the  Senate,  state  the  matter  in 
question,  and  apply  for  a  hearing;  notice  of  such  memorial  and  application 
shall  be  given  by  order  of  the  Senate,  to  the  Legislature  or  the  Executive 
authority  of  the  other  State  in  Controversy.  The  Senate  shall  also  assign  a 
day  for  the  appearance  of  the  parties,  by  their  agents,  before  the  House. 
The  Agents  shall  be  directed  to  appoint,  by  joint  consent,  commissioners  or 
judges  to  constitute  a  Court  for  hearing  and  determining  the  matter  in 
question.  But  if  the  Agents  cannot  agree,  the  Senate  shall  name  three  per- 
sons out  of  each  of  the  several  States ;  and  from  the  list  of  such  persons  each 
party  shall  alternately  strike  out  one,  until  the  number  shall  be  reduced  to 
thirteen  ;  and  from  that  number  not  less  than  seven  nor  more  than  nine  names, 
as  the  Senate  shall  direct,  shall  in  their  presence,  be  drawn  out  by  lot;  and 
the  persons  whose  names  shall  be  so  drawn,  or  any  five  of  them  shall  be 
commissioners  or  Judges  to  hear  and  finally  determine  the  controversy ;  pro- 
vided a  majority  of  the  Judges,  who  shall  hear  the  cause,  agree  in  the  deter- 
mination. If  either  party  shall  neglect  to  attend  at  the  day  assigned,  without 
shewing  sufficient  reasons  for  not  attending,  or  being  present  shall  refuse 
to  strike,  the  Senate  shall  proceed  to  nominate  three  persons  out  of  each 
State,  and  the  Clerk  of  the  Senate  shall  strike  in  behalf  of  the  party  absent 
or  refusing.  If  any  of  the  parties  shall  refuse  to  submit  to  the  authority  of 
such  Court ;  or  shall  not  appear  to  prosecute  or  defend  their  claim  or  cause, 
the  Court  shall  nevertheless  proceed  to  pronounce  judgment.  The  judgment 
shall  be  final  and  conclusive.  The  proceedings  shall  be  transmitted  to  the 
President  of  the  Senate,  and  shall  be  lodged  among  the  public  records,  for 
the  security  of  the  parties  concerned.  Every  Commissioner  shall,  before  he 
sit  in  judgment,  take  an  oath,  to  be  administered  by  one  of  the  Judges  of 
the  Supreme  or  Superior  Court  of  the  State  where  the  cause  shall  be  tried, 
"  well  and  truly  to  hear  and  determine  the  matter  in  question  according  to  the 
best  of  his  judgment,  without  favor,  affection,  or  hope  of  reward." 

XI 

Sect.  1.  The  Judicial  Power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  Courts  as  shall,  when  necessary,  from 
time  to  time,  be  constituted  by  the  Legislature  of  the  United  States. 

Sect.  2.  The  Judges  of  the  Supreme  Court,  and  of  the  Inferior  Courts, 
shall  hold  their  offices  during  good  behavior.  They  shall,  at  stated  times, 
receive  for  their  services,  a  compensation,  which  shall  not  be  diminished  dur- 
ing their  continuance  in  office. 

Sect.  3.  The  Jurisdiction  of  the  Supreme  Court  shall  extend  to  all  cases 
arising  under  laws  passed  by  the  Legislature  of  the  United  States  ;  to  all  cases 
affecting  Ambassadors,  other  Public  Ministers  and  Consuls ;  to  the  trial  of 
impeachments  of  Officers  of  the  United  States ;  to  all  cases  of  Admiralty  and 
maritime  jurisdiction;  to  controversies  between  two  or  more  States,  (except 
such  as  shall  regard  Territory  or  Jurisdiction)  between  a  State  and  Citizens 


CREATION    OF  THE   SUPREME    COURT  263 

of  another  State,  between  Citizens  of  different  States,  and  between  a  State 
or  the  Citizens  thereof  and  foreign  States,  citizens  or  subjects.  In  cases  of 
impeachment,  cases  affecting  Ambassadors,  other  Public  Ministers  and  Con- 
suls, and  those  in  which  a  State  shall  be  party,  this  jurisdiction  shall  be 
original.  In  all  the  other  cases  before  mentioned,  it  shall  be  appellate,  with 
such  exceptions  and  under  such  regulations  as  the  Legislature  shall  make. 
The  Legislature  may  assign  any  part  of  the  jurisdiction  above  mentioned 
(except  the  trial  of  the  President  of  the  United  States)  in  the  manner,  and 
under  the  limitations  which  it  shall  think  proper,  to  such  Inferior  Courts, 
as  it  shall  constitute  from  time  to  time. 

XVI 

Full  faith  shall  be  given  in  each  State  to  the  acts  of  the  Legislatures,  and 
to  the  records  and  judicial  proceedings  of  the  Courts  and  Magistrates  of 
every  State. 

XX 

The  members  of  the  Legislatures,  and  the  Executive  and  Judicial  officers 
of  the  United  States,  and  of  the  several  States,  shall  be  bound  by  oath  to 
support  this  Constitution.1 

The  articles  concerning  the  judiciary  were  taken  up  on  August  27th,  when 
Dr.  Johnson  proposed  to  extend  the  judicial  power  of  the  United  States  to 
cases  involving  law  and  equity.  After  discussion  this  was  agreed  to,  and 
the  phrase  "  both  in  law  and  equity  "  was  inserted  immediately  after  "  the 
United  States,"  2  thus  making  the  first  part  of  the  section  read 

The  judicial  power  of  the  United  States,  both  in  law  and  equity,  shall 
be  vested  in  one  Supreme  Court. 

At  a  later  date,  namely,  on  September  15th,  the  Convention  struck  out  the 
phrase  concerning  law  and  equity  inserted  in  this  part  of  the  articles,  because 
it  was  included  in  Sec.  2,  and  therefore  did  not  need  to  be  repeated.3  The 
matter  of  the  tenure  of  judges  was  taken  up,  and  it  was  proposed  by  Mr. 
Dickinson,  that  "  after  the  words  '  good  behaviour  '  the  words  '  provided  that 
they  may  be  removed  by  the  Executive  on  the  application  by  the  Senate  and 
House  of  Representatives '  "  be  inserted.4  Gouverneur  Morris  thought  that 
it  was  a  contradiction  in  terms  to  say  "  that  the  Judges  should  hold  their  offices 
during  good  behavior,  and  yet  be  removable  without  a  trial,"  and  Mr.  Rut- 
ledge  called  attention  to  what  he  considered  to  be  an  insuperable  objection 
to  the  motion,  in  that  the  Supreme  Court  was  to  judge  between  the  United 
States  and  particular  States.     The  motion  was  therefore  rejected,5  and  with 

'Documentary  History,  Vol.  Ill,  pp.  449-57. 

'  Ibid.,  p.  623. 

'Journal  of  the  Convention,  p.  384. 

*  Documentary  History,  Vol.  Ill,  pp.  623-4.     Session  of  August  27th. 

'  Ibid. 


264  THE    UNITED   STATES:   A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

modifications  of  form  suggested  by  the  Committee  of  Style,  the  article  was 
adopted  substantially  as  reported  by  the  Committee  of  Detail,  and  in  the 
Constitution  as  finally  signed  the  two  sections  are  thus  merged : 

Article  III. 

Section  1.  The  judicial  Power  of  the  United  States,  shall  be  vested  in  one 
supreme  Court,  and  in  such  inferior  Courts  as  the  Congress  may  from  time 
to  time  ordain  and  establish.  The  Judges,  both  of  the  supreme  and  inferior 
Courts,  shall  hold  their  Offices  during  good  Behaviour,  and  shall,  at  stated 
Times,  receive  for  their  Services,  a  Compensation,  which  shall  not  be  dimin- 
ished during  their  Continuance  in  Office. 

Section  3  of  the  11th  Article  reported  by  the  Committee  of  Detail  dealt 
with  the  subject  matter  of  the  2d  Section  of  the  present  Constitution,  and 
in  addition  with  some  other  matters  which  will  be  referred  to  later.  On 
August  27th,  Mr.  Madison  and  Gouverneur  Morris,  as  stated  in  Madison's 
Notes,  "  moved  to  insert  after  the  word  '  controversies '  the  words  '  to  which 
the  U —  S —  shall  be  a  party,'  "  1  which  had  the  effect  of  investing  the  Su- 
preme Court  with  jurisdiction  in  cases  affecting  the  United  States,  and  of 
subordinating  the  United  States  to  the  law  as  interpreted  by  the  tribunal. 
This  amendment  gave  effect  to  one  of  several  proposals  which  Charles  Pinck- 
ney  had  made  on  August  20th,  as  follows : 

The  Jurisdiction  of  the  supreme  Court  shall  be  extended  to  all  contro- 
versies between  the  U.  S.  and  an  individual  State,  or  the  U.  S.  and  the 
Citizens  of  an  individual  State.2 

Dr.  Johnson  moved  to  amend  the  first  clause  of  the  article  as  reported  by  the 
Committee  of  Detail  by  inserting  before  the  word  "  laws  "  in  the  first  clause 
thereof,  the  expression  "  this  Constitution  and  the,"  3  which  would  have  the 
effect  of  extending  the  jurisdiction  of  the  Supreme  Court  to  all  cases  both  in 
law  and  equity  arising  under  "  this  Constitution  and  the  laws  of  the  United 
States,"  etc. 

This  raised  a  very  important  question,  which  was  at  any  rate  seen  by  Mr. 
Madison  and  called  to  the  attention  of  the  Convention,  for,  to  quote  his 
Notes,  he  "  doubted  whether  it  was  not  going  too  far  to  extend  the  jurisdic- 
tion of  the  Court  generally  to  cases  arising  Under  the  Constitution,  & 
whether  it  ought  not  to  be  limited  to  cases  of  a  Judiciary  Nature.  The  right 
of  expounding  the  Constitution  in  cases  not  of  this  nature  though  not  to  be 
given  to  that  Department."  4  That  is  to  say,  the  court  was  to  be  a  court  of  law 

1  Documentary  History,  Vol.  Ill,  p.  626. 
'  Ibid.,  p.  566. 
'  Ibid.,  p.  626. 
'  Ibid. 


CREATION    OF  THE   SUPREME    COURT  265 

and   equity;   it   was  not   to   be   a   diplomatic   body   passing   upon   political 
questions. 

There  appears  to  have  been  no  action  taken  on  the  question  raised  by 
Mr.  Madison.  Dr.  Johnson's  motion  was  agreed  to  "  nem.  con.,"  it  being  gen- 
erally supposed,  as  Mr.  Madison  says,  that  the  jurisdiction  was  constructively 
limited  to  cases  of  a  judicial  nature.1 

This  was  not  the  only  amendment  to  the  clause,  and  one  moved  by  Mr. 
Rutledge  gave  effect  to  one  of  the  purposes  for  which  the  Convention  had 
been  called,  namely,  to  enable  the  United  States  to  have  its  international 
obligations  passed  upon  by  a  tribunal  of  the  Union  instead  of  by  tribunals  of 
the  individual  States,  with  the  possibility  of  inconsistent  and  jarring  inter- 
pretations. Immediately  after  the  expression  "  United  States,"  contained  in 
this  clause,  Mr.  Rutledge  moved  to  insert  "  and  treaties  made  or  which  shall 
be  made  under  their  authority."  He  further  moved  the  omission  of  the 
phrase  "  passed  by  the  Legislature,"  and  both  his  amendments  carried.2 
The  amendment,  however,  was  due  to  Mr.  Madison,  upon  whose  motion  it 
had  been  debated  two  days  previously  and  in  a  different  connection,  as  will 
presently  appear.3 

Without  dwelling  further  upon  these  matters  at  this  time,  and  leaving 
aside  other  and  special  phases  of  the  Judiciary  which  will  be  discussed  laten 
it  is  evident  that  the  members  of  the  Constitutional  Convention  were  intent 
upon  a  Supreme  Court  of  the  more  perfect  Union  in  the  technical  sense 
of  the  word ;  that  it  should  not  pass  upon  all  provisions  of  the  Constitution, 
but  only  upon  those  of  a  judicial  nature;  that  the  Congress  should  have  the 
power,  to  be  exercised  in  its  discretion,  of  appointing  inferior  tribunals  from 
which  an  appeal  should  lie  to  the  Supreme  Court;  that  for  uniformity  of 
decision  appeals  should  lie  from  State  tribunals  when  national  or  international 
questions  were  concerned ;  and  that  in  any  event  the  provisions  of  the  Constitu- 
tion of  a  non-political  character,  the  acts  of  Congress  passed  in  pursuance  of 
the  Constitution,  and  treaties  made  or  to  be  made  by  the  United  States,  should 
be  determined  by  the  Supreme  Court  of  the  States,  not  finally  determined 
even  by  the  Supreme  Courts  of  the  several  States.  In  a  word,  every  national 
and  every  international  act  was  in  ultimate  resort  to  be  determined  by  the 
final  judicial  authority  of  the  Union. 

The  framers  of  the  Constitution,  however,  did  not  content  themselves  with 

a  narrow   and   technical   definition   of   judicial   power.      They   extended   it, 

wisely  as  we  now  know,  to  controversies  between  the  States,  making  the 

Supreme  Court  an  international  tribunal  and  showing  the  possibility  of  an 

international  court  of  justice  for  the  Society  of  Nations. 

1  ibid.,  p.  626. 

5  Ibid. 

'  Ibid.,  p.  619.    Session  of  August  25th. 


XIII 

PROTOTYPE  OF  A  COURT  OF  INTERNATIONAL 

JUSTICE 

The  usual  remedies  between  nations,  war  and  diplomacy,  being  precluded  by  the  federal 
union,  it  is  necessary  that  a  judicial  remedy  should  supply  their  place.  The  Supreme  Court 
of  the  Federation  dispenses  international  law,  and  is  the  first  great  example  of  what  is  now 
one  of  the  most  prominent  wants  of  civilized  society,  a  real  International  Tribunal.  (John 
Stuart  Mill,  Considerations  on  Representative  Government,  1861,  pp.  305-306.) 

Sitting,  as  it  were,  as  an  international,  as  well  as  a  domestic  tribunal,  we  apply  Federal 
law,  state  law,  and  international  law,  as  the  exigencies  of  the  particular  case  may  de- 
mand. .  .  .  (Chief  Justice  Fuller  in  Kansas  v.  Colorado,  185  United  States,  125,  146-147, 
decided  in  1902.) 

The  importance  which  the  framers  of  the  Constitution  attached  to  such  a  tribunal,  for 
the  purpose  of  preserving  internal  tranquillity,  is  strikingly  manifested  by  the  clause  which 
gives  this  court  jurisdiction  over  the  sovereign  States  which  compose  this  Union,  when  a 
controversy  arises  between  them.  Instead  of  reserving  the  right  to  seek  redress  for  injus- 
tice from  another  State  by  their  sovereign  powers,  they  have  bound  themselves  to  submit 
to  the  decision  of  this  court,  and  to  abide  by  its  judgment.  And  it  is  not  out  of  place  to 
say,  here,  that  experience  has  demonstrated  that  this  power  was  not  unwisely  surrendered 
by  the  States ;  for  in  the  time  that  has  already  elapsed  since  this  Government  came  into 
existence,  several  irritating  and  angry  controversies  have  taken  place  between  adjoining 
States,  in  relation  to  their  respective  boundaries,  and  which  have  sometimes  threatened  to 
end  in  force  and  violence,  but  for  the  power  vested  in  this  court  to  hear  them  and  decide 
between  them.  (Chief  Justice  Taney  in  Ableman  v.  Booth,  21  Howard,  506,  519,  decided 
in  1858.) 

Those  states,  in  their  highest  sovereign  capacity,  in  the  convention  of  the  people  thereof ; 
on  whom,  by  the  revolution,  the  prerogative  of  the  crown,  and  the  transcendent  power  of 
parliament  devolved,  in  a  plenitude  unimpaired  by  any  act,  and  controllable  by  no  authority, 
adopted  the  constitution,  by  which  they  respectively  made  to  the  United  States  a  grant  of 
judicial  power  over  controversies  between  two  or  more  states.  (Mr.  Justice  Baldwin  in 
Rhode  Island  v.  Massachusetts,  12  Peters,  657,  720,  decided  in  1838.) 

So  that  the  practice  seems  to  be  well  settled,  that  in  suits  against  a  state,  if  the  state 
shall  refuse  or  neglect  to  appear,  upon  due  service  of  process,  no  coercive  measures  will 
be  taken  to  compel  appearance ;  but  the  complainant,  or  plaintiff,  will  be  allowed  to  proceed 
ex  parte.  (Mr.  Justice  Thompson  in  Massachusetts  v.  Rhode  Island,  12  Peters,  755,  761, 
decided  in  1838.) 

From  the  character  of  the  parties,  and  the  nature  of  the  controversy,  we  cannot,  without 
committing  great  injustice,  apply  to  this  case  the  rules  as  to  time,  which  govern  Courts  of 
Equity  in  suits  between  individuals.  .  .  .  But  a  case  like  this,  and  one  too  of  so  many 
years  standing,  the  parties,  in  the  nature  of  things,  must  be  incapable  of  acting  with  the 
promptness  of  an  individual.  Agents  must  be  employed,  and  much  time  may  be  required 
to  search  for  historical  documents,  and  to  arrange  and  collate  them,  for  the  purpose  of 
presenting  to  the  Court  the  true  grounds  of  the  defence.  (Chief  Justice  Taney  in  Rhode 
Island  v.  Massachusetts,  13  Peters,  23,  24,  decided  in  1839.) 

The  case  to  be  determined  is  one  of  peculiar  character,  and  altogether  unknown  in  the 
ordinary  course  of  judicial  proceedings.  It  is  a  question  of  boundary  between  two  sov- 
ereign states,  litigated  in  a  Court  of  Justice,  and  we  have  no  precedents  to  guide  us  in  the 
forms  and  modes  of  proceedings,  by  which  a  controversy  of  this  description  can  most 
conveniently,  and  with  justice  to  the  parties,  be  brought  to  a  final  hearing.  The  subject 
was  however   fully  considered  at  January  term,   1838.    ...     It   was  then   decided,   that 

266 


PROTOTYPE    OF    A    COURT   OF    INTERNATIONAL    JUSTICE  267 

the   rules  and   practice   of  the   Court  of   Chancery  should   govern  in  conducting  this   suit 
to  a  final  issue.   .    .    . 

Yet,  in  a  controversy  where  two  sovereign  states  are  contesting  the  boundary  between 
them,  it  will  be  the  duty  of  the  Court  to  mould  the  rules  of  Chancery  practice  and  pleading, 
in  such  a  manner  as  to  bring  this  case  to  a  final  hearing  on  its  real  merits.  It  is  too 
important  in  its  character,  and  the  interests  concerned  are  too  great,  to  be  decided  upon 
the  mere  technical  principles  of  Chancery  pleading.  (Chief  Justice  Taney  in  Rhode  Island 
v.  Massachusetts,  14  Peters,  210,  256-7,  decided  in  1840.) 

And  it  would  seem  that  when  the  Constitution  was  framed,  and  when  this  law  was 
passed,  it  was  confidently  believed  that  a  sense  of  justice  and  of  mutual  interest  would 
insure  a  faithful  execution  of  this  constitutional  provision  by  the  Executive  of  every  State, 
for  every  State  had  an  equal  interest  in  the  execution  of  a  compact  absolutely  essential  to 
their  peace  and  well  being  in  their  internal  concerns,  as  well  as  members  of  the  Union. 
Hence,  the  use  of  the  words  ordinarily  employed  when  an  undoubted  obligation  is  required 
to  be  performed,  "  it  shall  be  his  duty." 

But  if  the  Governor  of  Ohio  refuses  to  discharge  this  duty,  there  is  no  power  delegated 
to  the  General  Government,  either  through  the  Judicial  Department  or  any  other  depart- 
ment, to  use  any  coercive  means  to  compel  him.  (Chief  Justice  Taney  in  Kentucky  v. 
Dennison,  Governor  of  Ohio,  24   Howard,  66,  109-10,  decided  in  i860.) 

The  opinions  referred  to  will  make  it  clear  that  both  States  were  afforded  the  amplest 
opportunity  to  be  heard  and  that  all  the  propositions  of  law  and  fact  urged  were  given 
the  most  solicitous  consideration.  Indeed,  it  is  also  true  that  in  the  course  of  the  contro- 
versy, as  demonstrated  by  the  opinions  cited,  controlled  by  great  consideration  for  the 
character  of  the  parties,  no  technical  rules  were  permitted  to  frustrate  the  right  of  both 
of  the  States  to  urge  the  very  merits  of  every  subject  deemed  by  them  to  be  material. 

And,  controlled  by  a  like  purpose,  before  coming  to  discharge  our  duty  in  the  matter  now 
before  us,  we  have  searched  the  record  in  vain  for  any  indication  that  the  assumed  exist- 
ence of  any  error  committed  has  operated  to  prevent  the  discharge  by  West  Virginia  of 
the  obligations  resulting  from  the  judgment  and  hence  has  led  to  the  proceeding  to  enforce 
the  judgment  which  is  now  before  us.  (Chief  Justice  White  in  Virginia  v.  West  Virginia, 
246  United  States,  565,  500,  decided  in  1018.) 

That  judicial  power  essentially  involves  the  right  to  enforce  the  results  of  its  exertion 
is  elementary.  .  .  .  And  that  this  applies  to  the  exertion  of  such  power  in  controversies 
between  States  as  the  result  of  the  exercise  of  original  jurisdiction  conferred  upon  this 
court  by  the  Constitution  is  therefore  certain.  The  many  cases  in  which  such  contro- 
versies between  States  have  been  decided  in  the  exercise  of  original  jurisdiction  make  this 
truth  manifest.  Nor  is  there  room  for  contending  to  the  contrary  because,  in  all  the  cases 
cited,  the  States  against  which  judgments  were  rendered,  conformably  to  their  duty  under 
the  Constitution,  voluntarily  respected  and  gave  effect  to  the  same.  This  must  be  unless  it 
can  be  said  that,  because  a  doctrine  has  been  universally  recognized  as  being  beyond  dis- 
pute and  has  hence  hitherto,  in  every  case  from  the  foundation  of  the  Government,  been 
accepted  and  applied,  it  has  by  that  fact  alone  now  become  a  fit  subject  for  dispute. 
(Chief  Justice  White  in  Virginia  v.  West  Virginia,  246  United  States,  565,  591-2,  decided 
in  19 18.) 

The  complainant,  the  Commonwealth  of  Virginia,  now  comes  and  informs  the  Court 
that  the  decree  entered  by  the  Court  in  this  cause  on  the  14th  of  June,  1915,  in  favor  of 
the  complainant  and  against  the  defendant,  for  the  sum  of  $12,393,929.50,  with  interest 
thereon  from  July  1st,  1915,  until  paid  at  the  rate  of  five  per  centum  per  annum,  together 
with  one-half  of  the  costs,  has  been  fully  satisfied  and  paid  by  the  defendant  in  the  manner 
provided  in,  and  in  accordance  with  the  terms  of  the  Act  of  the  Legislature  of  the  State 
of  West  Virginia  approved  April  1st,  1919,  entitled  "  An  Act  providing  for  the  payment  of 
West  Virginia's  part  of  the  public  debt  of  the  commonwealth  of  Virginia  prior  to  the  first 
day  of  January,  one  thousand  eight  hundred  and  sixty-one,  as  ascertained  by  the  judgment 
of  the  Supreme  Court  of  the  United  States  and  adjusted  by  the  two  States,  and  to  provide 
for  the  issuance  of  bonds  and  the  raising  and  appropriation  of  .money  for  the  payment  of 
said  judgment."  (Acknowledgment  of  Satisfaction  of  Decree  filed  in  the  Supreme  Court 
of  the  United  States.  March  1,  1920,  in  the  case  of  State  of  Virginia  v.  State  of  West 
Virginia.  238  United  States.  202.  decided  in  1915.) 


CHAFTER  XIII 


PROTOTYPE  OF  A  COURT   OF   INTERNATIONAL  JUSTICE 


Questions 
Arising 
Under 
Treaties 


The  effect  of  Mr.  Rutledge's  motion  to  have  the  judicial  power  of  the 
United  States  extended  to  treaties  made  or  to  be  made  under  their  authority 
was  to  endow  the  Supreme  Court  with  the  power  and  the  duty  to  pass  upon 
the  question  of  treaties  and  to  ascertain  and  fix  the  obligation  of  the  general 
government  and  of  the  States  by  judicial  decision  of  the  Supreme  Court.  A 
minor  but  not  unimportant  improvement  of  the  draft  of  August  6th  should 
be  mentioned,  which  was  made  in  the  busy  and  fruitful  session  of  August 
27th.  By  an  inspection  of  the  draft  it  will  appear  that,  by  the  first  section 
of  Article  11,  "the  Judicial  Power  of  the  United  States  shall  be  vested  in 
one  Supreme  Court;"  and  in  section  3  thereof,  "the  jurisdiction  of  the 
Supreme  Court  "  is  very  naturally  and  properly  defined.1  This  slight  varia- 
tion of  language,  which  might  be  supposed  to  affect  the  meaning,  was  not 
lost  upon  Mr.  Madison.  He  suggested,  with  the  unanimous  approval  of  the 
Convention,  that  the  wording  should  be  the  same  in  each  case,  and  therefore 
"  the  Judicial  Power  "  of  the  United  States  was  substituted  for  "  the  juris- 
diction of  the  Supreme  Court."  2 

There  was  an  added  reason  for  the  change  which  could  be  advanced  if 
any  justification  be  needed,  in  that  the  first  section  expressly,  and  the  second 
section  impliedly,  spoke  of  inferior  courts  to  which  the  judicial  power  of 
the  United  States  was  to  extend.  Therefore  this  expression  was  really 
more  accurate  than  the  former.  It  will  also  be  observed  from  the  draft  of 
the  Committee  of  Detail  that,  while  the  jurisdiction  of  the  Supreme  Court, 
or,  as  amended,  the  judicial  power  of  the  United  States,  is  extended  to  con- 
troversies between  two  or  more  States,  controversies  regarding  "  territory 
or  jurisdiction  "  are  excepted  from  the  jurisdiction  of  the  Supreme  Court. 
It  was  intended,  however,  that  they  should  be  subject  to  the  judicial  power, 
although  the  procedure  to  be  followed  was  different. 

The  reason  for  the  exception  is  not  difficult  to  find,  for,  in  this  as  in 
other  matters,  the  members  of  the  Convention  had  in  mind,  and  indeed 
under  their  very  eyes,  the  Articles  of  Confederation,  which  they  retained  in 
spirit  if  not  in  letter  whenever  it  seemed  possible  or  advisable  to  do  so.  The 
ninth  of  these  articles  declared  that  "  the  United  States  in  Congress  assem- 


1  Documentary  History  of  the  Constitution,  Vol.  Ill,  p.  454.     Session  of  August  6th. 
'  Ibid.,  p.  627. 

268 


PROTOTYPE    OF   A    COURT   OF    INTERNATIONAL    JUSTICE  269 

bled  shall  also  be  the  last  resort  on  appeal  in  all  disputes  and  differences  now 
subsisting  or  that  hereafter  may  arise  between  two  or  more  States  concern- 
ing boundary,  jurisdiction,  or  any  other  cause  whatever,"  and  provided  that 
they  should  be  settled  by  means  of  temporary  commissions  to  be  appointed 
by  the  Congress  upon  the  general  consent  of  the  agents  of  the  States  in  con- 
troversy, or,  in  default  of  their  agreement,  from  a  list  made  up  of  three 
persons  from  each  of  the  thirteen  States  represented  in  the  Congress.  The 
Committee  of  Detail  had  preserved  this  procedure,  restricting  it,  however, 
to  disputes  and  controversies  "  respecting  jurisdiction  or  territory,"  and  sub- 
stituting the  Senate  of  the  Constitution  for  the  Congress  of  the  Confedera- 
tion. In  substance  and  in  spirit  the  ninth  article  of  the  Confederation  was 
preserved,  as  in  the  Senate  the  States  were  to  be  equally  represented,  as  they 
had  been  under  the  Confederation;  so  that  the  representatives  of  the  States 
as  such  were  to  take  the  necessary  steps  for  the  settlement  of  disputes  and 
differences.  The  long  section  of  the  articles  and  of  the  proposed  Constitu- 
tion was  replaced  by  the  very  simple  provision  that  "  the  judicial  power 
shall  extend  ...  to  controversies  between  two  or  more  States."  In  this 
change  lies  the  promise  of  an  international  judiciary,  for  controversies 
involving  questions  of  law  and  equity  between  two  or  more  States  of  the 
American  Union  were  to  be  decided  by  judges,  not  compromised  by  arbiters, 
just  as  controversies  between  members  of  the  society  of  nations  can  and  one 
day  will  be  so  decided  involving  "  the  principles  of  equity  and  right  on  which 
are  based  the  security  of  States  and  the  welfare  of  peoples,"  to  quote  the 
preamble  to  the  Hague  Convention  for  the  pacific  settlement  of  international 
disputes.1 

As  this  point  is  so  interesting  and  so  important,  and  as  the  Supreme  Court 
is  the  prototype  of  an  international  tribunal,  the  discussion  of  the  matter  in 
the  Convention  is  set  forth  m  full  as  found  in  Mr.  Madison's  Notes  under 
date  of  August  24th : 

Sect:  2  &  3  of  art:  IX  being  taken  up. 

Mr.  Rutlidge  said  this  provision  for  deciding  controversies  between  the 
States  was  necessary  under  the  Confederation,  but  will  be  rendered  unnec- 
essary by  the  National  Judiciary  now  to  be  established,  and  moved  to  strike 
it  out. 

Docr.  Johnson  2ded.  the  Motion. 

Mr.  Sherman  concurred :  so  did  Mr.  Dayton. 

Mr.  Williamson  was  for  postponing  instead  of  striking  out,  in  order  to 
consider  whether  this  might  not  be  a  good  provision,  in  cases  where  the 
Judiciary  were  interested  or  too  closely  connected  with  the  parties — 

Mr.  Ghorum  had  doubts  as  to  striking  out,  The  Judges  might  be  con- 
nected with  the  States  being  parties — He  was  inclined  to  think  the  mode 

1  Statutes  at  Large,  36 :  2201. 


270 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL    ORGANIZATION 


How  Political 
Questions 
Become 
Judicial 


Arbitration 
Considered 


proposed  in  the  clause  would  be  more  satisfactory  than  to  refer  such  cases 
to  the  Judiciary — 

On  the  Question  for  postponing  the  2d.  and  3d.  Section,  in  passed  in  the 
negative. 

N.  H.  ay.  Masts.  no.  Con*,  no.  N.  J.  no.  Pen3,  abs*.  Del.  no.  Md.  no. 
Va.  no.  N.  C.  ay.  S-  C  no.  Geo.  ay. 

Mr.  Wilson  urged  the  striking  out,  the  Judiciary  being  a  better  pro- 
vision. 

On  Question  for  striking  out  2  &  3  Sections  Art :  IX. 

N.  H.  ay.  Mas:  ay.  O.  ay.  N.  J-  ay.  Pa.  abs'.  Del-  ay.  Md.  ay.  Va.  ay. 
N.  C.  no.  S.  C.  ay — Geo.  no.1 

We  are  indeed  fortunate  to  have  even  this  brief  account  of  one  of  the 
silent  revolutions  in  the  thought  and  therefore  in  the  practice  of  mankind, 
for,  with  the  lessons  of  history  before  them  and  with  no  exact  precedent 
for  their  action,  the  members  of  the  Convention  recognized  that  the  submis- 
sion of  a  dispute  between  nations  to  a  judicial  tribunal  makes  of  it  a 
juridical  question,  and  therefore  a  proper  subject  of  judicial  power,  as 
pointed  out  by  the  agent  of  their  creation  in  the  controversy  between  Rhode 
Island  and  Massachusetts  (12  Peters,  755)  decided  in  1838. 

It  is  to  be  observed,  in  the  first  place,  that  the  Convention  regarded  some 
method  as  "  necessary  "  for  settling  the  disputes  between  the  States.  With- 
out a  court  some  such  provision  as  that  of  the  Articles  of  Confederation 
was  "  necessary ;  "  but  the  establishment  of  the  court  made  the  provision  of 
the  articles  "  unnecessary,"  as  pointed  out  by  Mr.  Rutledge,  in  that  there 
would  be  an  agency  ready  and  apt  to  decide  the  disputes  without  the  delay 
involved  in  creating  one  for  the  case  when  it  arose  and  which,  as  a  tem- 
porary tribunal,  would  go  out  of  being  when  the  dispute  had  been  settled. 
The  provision  of  the  articles  was  therefore  unnecessary,  and  the  gospel  of 
the  new  dispensation  was,  as  Mr.  Wilson  urged,  "  a  better  provision." 

It  is  further  to  be  observed  that  the  motion  in  this  case  was  made  by  a 
distinguished  lawyer,  later  to  be  Chief  Justice  of  the  Supreme  Court  of  the 
United  States,  and  that  the  recommendation  for  the  judicial  method  came 
from  Mr.  Wilson,  then  a  leader  of  the  Pennsylvania  bar  and  destined  to  be 
a  Justice  of  the  Supreme  Court.  It  appeared  to  these  men  to  go  without 
argument  that  controversies  of  a  legal  and  equitable  nature  between  States 
could,  and  therefore  should,  be  decided  by  a  court,  which  for  purposes  of 
justice  was  to  be  the  agent  created  by  the  States  in  which  they  consented  to 
be  sued,  not  an  agency  of  government  superior  to  the  States  and  imposed 
upon  them  from  above.  It  will  also  be  observed  that  some  of  the  delegates 
felt  that  the  method  of  arbitration  could  still  profitably  be  resorted  to,  as  it 
was  later  to  be  pointed  out  by  a  distinguished  French  statesman  at  the 
Second  Hague  Peace  Conference,  that  nations,  while  willing  to  submit  their 

''■Documentary  History  of  the  Constitution,  Vol.  Ill,  pp.   607-8. 


PROTOTYPE   OF   A    COURT   OF   INTERNATIONAL    JUSTICE  271 

controversies  of  a  judicial  nature  to  an  international  court,  might  prefer  to 
submit  their  disputes  of  a  different  nature,  or  in  which  the  judicial  was 
slight  in  comparison  to  the  political  element,  to  arbitration.1 

If  the  matter  had  stopped  here,  only  a  part  of  the  jurisdiction  exercised 
by  the  United  States  in  Congress  assembled  under  the  ninth  of  the  Articles 
of  Confederation  would  have  been  vested  in  the  Supreme  Court.  The  ninth 
article  submitted  to  the  Congress  "  all  controversies  concerning  the  private 
right  of  soil  claimed  under  different  grants  of  two  or  more  States  "  to  "  be 
finally  determined  as  near  as  may  be  in  the  same  manner  .  .  .  for  decid- 
ing disputes  respecting  territorial  jurisdiction  between  different  States." 
This  clause,  forming  the  third  section  of  the  ninth  of  the  Articles  of  Con- 
federation, was  retained  in  the  proposed  draft  of  the  Constitution,  which 
likewise  formed  the  third  section  of  the  ninth  article,  with  the  substitution 
of  the  Senate,  with  its  equal  representation  of  the  States,  for  the  Congress, 
and  is  thus  worded  in  the  latter  document : 

All  controversies  concerning  lands  claimed  under  different  grants  of 
two  or  more  States,  whose  jurisdictions,  as  they  respect  such  lands  shall 
have  been  decided  or  adjusted  subsequent  to  such  grants,  or  any  of  them, 
shall,  on  application  to  the  Senate,  be  finally  determined,  as  near  as  may  be, 
in  the  same  manner  as  is  before  prescribed  for  deciding  controversies 
between  different  States.2 

Therefore,  in  the  session  of  the  27th,  three  days  after  the  Supreme  Court 
was  vested  with  jurisdiction  of  controversies  between  the  States,  Mr. 
Sherman  proposed  a  further  extension  of  judicial  power  by  investing  the 
court  with  the  exercise  of  the  power  contained  in  the  ninth  of  the  Articles 
of  Confederation,  carried  over  to  the  ninth  article  of  the  proposed  Consti- 
tution. As  recorded  by  Mr.  Madison,  "  Mr.  Sherman  moved  to  insert  after 
the  words  '  between  Citizens  of  different  States  '  the  words,  '  between  Citi- 
zens of  the  same  State  claiming  lands  under  grants  of  different  States  ' — 
according  to  the  provision  in  the  ninth  art :  of  the  Confederation — which 
was  agreed  to  nem :  con:"  As  thus  modified,  this  section  of  the  ninth 
article  is  embodied  in  the  Constitution. 

A  further  and  not  the  least  interesting  modification  of  the  proposed  Con- 
stitution was  likewise  made  in  the  session  of  the  27th,  in  which  the  Supreme 
Court  was  vested  with  the  jurisdiction  which  the  Congress  had  possessed 

1  "  Thus  it  is  seen  that  the  cases  for  which  the  permanent  tribunal  is  possible  are  the 
same  as  those  in  which  compulsory  arbitration  is  acceptable,  being,  generally  speaking, 
cases  of  legal  nature.  Whereas  political  cases,  in  which  the  nations  should  be  allowed 
freedom  to  resort  to  arbitration,  are  the  very  ones  in  which  arbitrators  are  necessary  rather 
than  judges,  that  is,  arbitrators  chosen  at  the  time  the  controversy  arises."  Discourse  of 
M.  Leon  Bourgeois.  James  Brown  Scott,  The  Reports  to  the  Hague  Conferences  of  1899 
and  1907,  (1918),  pp.  239-40. 

2  Documentary  History,  Vol.  iii,  p.  452.     Session  of  August  6th. 
'  Ibid.,  p.  627. 


272 


THE   UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Original  and 

Appellate 

Jurisdiction 


Impeachment 


under  the  Confederation.  A  step  in  advance  of  this  was  taken  by  the  Con- 
vention upon  Mr.  Madison's  suggestion  "agreed  to  nem.  con.,"  that  after 
the  words  "  controversies  between  the  States,"  the  clause  should  be  inserted 
"  to  which  the  U-  S-  shall  be  a  party."  1  The  Supreme  Court  was  the 
appropriate  court  in  which  the  United  States  should  appear  as  a  litigant,  and 
it  was  natural  that  the  right  of  the  Government  to  avail  itself  of  this  tri- 
bunal should  be  expressly  stated;  although  it  might  have  been  plausibly  con- 
tended that  the  United  States,  as  such,  would  be  included  within  the  clause 
extending  the  judicial  power  "  to  controversies  between  two  or  more 
States."  The  Convention  either  did  not  consider  the  United  States  as  a 
State  within  the  meaning  of  this  clause,  or  deemed  it  preferable  to  separate 
the  united  from  the  individual  States.  Had  it  not  done  so,  and  if  the  United 
States  were  not  included  within  the  clause,  it  would  have  followed  that  the 
United  States  could  be  sued  in  the  Supreme  Court  as  well  as  appear  as  a 
plaintiff  in  a  controversy  with  a  State  to  which  it  was  a  party,  whereas  the 
United  States  would  or  would  not  be  a  party  defendant  under  Air.  Madison's 
motion  as  the  Supreme  Court  should  interpret  the  clause  when  a  case  involv- 
ing it  was  presented  for  its  consideration.  In  any  event,  it  is  important  to 
note  the  difference  of  language  used  with  respect  to  the  United  States  and 
to  the  States  as  such  in  these  two  clauses,  as  the  Supreme  Court  has  held 
that,  by  virtue  of  this  wording,  a  State  may  be  made  defendant  at  the 
instance  of  a  State  because  of  the  consent  by  them  given  in  the  Constitu- 
tion, whereas  the  United  States,  by  the  clause  in  question,  is  authorized  to 
make  use  of  the  Supreme  Court  in  a  controversy  to  which  it  is  a  party,  but 
not  to  be  made  a  defendant  without  its  special  consent,  as  the  terms  of  the 
clause  imply  authorization,  not  consent. 

The  second  clause  of  the  second  section  of  the  third  article  of  the  Con- 
stitution as  finally  adopted  is  designed  to  give  effect  to  the  grant  of  judicial 
power  and  to  assign  some  of  the  subjects,  by  reason  of  their  importance,  to 
the  original  jurisdiction  of  the  Supreme  Court,  and,  in  all  other  matters 
included  in  the  article,  to  give  the  Supreme  Court  appellate  jurisdiction 
"  with  such  Exceptions,  and  under  such  Regulations  as  the  Congress  shall 
make  "  in  order  that  there  may  be  one  law  for  the  United  States,  one  for 
the  States,  and  one  for  the  citizens  thereof,  in  as  far  as  what  may  be  called 
federal  questions  are  concerned.  The  impeachment  of  officers  of  the  United 
States  fell  within  the  original  jurisdiction  of  the  Supreme  Court  in  the 
draft  of  the  Committee  of  Detail  as  reported  on  August  6th.2  This  question 
was,  however,  ultimately  removed  from  the  judicial  to  the  legislative  branch 
of  the  Government  of  the  Union.     The  requirement  that  the  Chief  Justice 

1  Documentary  History,  Vol.  iii,  p.  626. 

2  Ibid.,  p.  454.    Article  XI,  Sec.  3. 


PROTOTYPE   OF   A    COURT   OF    INTERNATIONAL    JUSTICE  273 

of  the  Supreme  Court  should  preside  in  the  Senate  during  the  trial  of  per- 
sons impeached  by  the  House  of  Representatives  shows  that,  although 
removed  from  the  court,  the  procedure  was  nevertheless  to  be  judicial,  mak- 
ing of  the  Senate,  when  so  sitting,  a  high  court  of  impeachment.  With  this 
further  exception,  the  grant  of  original  jurisdiction  in  the  Constitution 
stands  as  reported  by  the  Committee  of  Detail,  with  slight  changes  of  lan- 
guage later  made  by  the  Committee  on  Style. 

The  balance  of  the  clause,  however,  was  changed  in  substance  as  well  as 
in  form  by  the  Convention.  Doubt  having  arisen  in  the  mind  of  Gouverneur 
Morris  as  to  whether  the  appellate  jurisdiction  of  the  Supreme  Court  already 
extended  to  matters  of  fact  as  well  as  law  and  to  cases  of  common  as  well 
as  civil  law,  Mr.  Wilson,  speaking  for  the  Committee,  of  which  he  was  a 
member,  said  : 

The  Committee  he  believed  meant  facts  as  well  as  law  &  Common  as 
well  as  Civil  law.  The  jurisdiction  of  the  federal  Court  of  Appeals  had  he 
said  been  so  construed.1 

In  order  to  clear  up  all  doubt  on  this  point,  Mr.  Dickinson  moved,  and  his 
motion  was  unanimously  agreed  to,  "  to  add  after  the  word  '  appellate '  the 
words  '  both  as  to  law  &  fact,'  "  2  and  on  the  following  day,  the  28th,  to 
improve  the  English,  the  phrase  "  supreme  Court  "  was  substituted  for  the 
expression  "  it "  before  "  appellate  jurisdiction."  3  As  thus  amended,  the 
appellate  jurisdiction  of  what  we  should  today  call  the  federal  courts  was 
agreed  upon  in  the  session  of  the  27th  of  August,  with  the  exception  of  cer- 
tain formal  changes  proposed  by  the  Committee  on  Style. 

How  were  the  judges  to  be  appointed  for  the  Supreme  Court  and  the 
inferior  courts  which  Congress  might  be  minded  to  establish  ?  In  the  first 
section  of  Article  IX  of  the  draft  as  reported  by  the  Committee  of  Detail, 
it  was  provided  that  "  the  Senate  of  the  United  States  shall  have  power  to 
make  treaties,  and  to  appoint  Ambassadors,  and  Judges  of  the  supreme 
Court."  4  But  in  the  discussions  on  the  appointment  of  the  judges,  which 
have  already  been  set  forth,  the  method  suggested  by  Mr.  Gorham,  although 
then  defeated,  was  eventually  adopted  and  applied  to  appointments  generally, 
by  virtue  whereof  they  are  made  by  the  executive,  by  and  with  the  consent 
of  the  second  branch,  that  is  to  say,  the  Senate. 

On  the  23d  of  August  the  clause  relating  to  the  appointment  of  Ambas- 
sadors  and   judges   came   before   the   Convention,   but   no   agreement   was 

1  Ibid.,  p.  627. 
3  Ibid. 

'Ibid.,  p.  628. 

'Ibid.,  p.  451. 


274  THE    UNITED    STATES  I    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

reached,  other  than  to  refer  the  matter  again  to  the  Committee  of  Detail. 
This  body  did  not,  however,  present  a  report;  therefore  the  question  went 
over  to  the  Committee  on  Unfinished  Portions,  which  considered  the  whole 
subject  of  appointments  as  properly  before  it  and  reported  the  following 
method,  approved  by  the  Convention  on  the  4th  of  September  with  the  addi- 
tion of  "  Consuls"  after  the  word  "Ministers": 

The  President  by  and  with  the  advice  and  Consent  of  the  Senate,  shall 
have  power  to  make  Treaties ;  and  he  shall  nominate  and  by  and  with  the 
advice  and  consent  of  the  Senate  shall  appoint  ambassadors,  and  other 
public  Ministers,  Judges  of  the  Supreme  Court,  and  all  other  Officers  of 
the  U-  S-,  whose  appointments  are  not  otherwise  herein  provided  for.  But 
no  treaty  shall  be  made  without  the  consent  of  two  thirds  of  the  members 
present.1 

The  framers  of  the  Constitution  were  much  worried  as  to  the  method  of 
appointing  judges  and  as  to  the  tenure  of  the  judges  when  appointed.  They 
were  creating  the  judiciary  equal  in  rank  and  dignity  to  the  legislative  and 
executive,  and  as  we  think  of  even  greater  importance,  for  great  as  are  the 
powers  of  the  other  departments  they  are  nevertheless  defined  and  interpreted 
by  the  judiciary,  and  in  cases  of  excess  of  the  Constitutional  grant  they  are 
declared  by  the  men  of  the  law  to  be  null  and  void.  To  do  this,  they  should 
be  independent  of  the  legislative  and  executive,  "  to  the  end,"  to  cite  again 
the  Constitution  of  Massachusetts,  "  it  may  be  a  government  of  laws,  and 
not  of  men."  Fortunately  for  the  administration  of  justice  and  the  prevalence 
of  law  in  these  United  States,  their  efforts  were  crowned  with  complete 
success. 
Ph0Wcrs  °f  ^ut  ^ie  Judiciary  would  not  have  stood  out  as  the  most  prominent  feature 

of  the  American  system,  and  the  judges  could  not  have  rendered  the  great 
services  which  they  have  to  the  American  people,  were  it  not  for  the  second 
clause  of  the  sixth  article  of  the  Constitution,  which  defined  the  sense  in 
which  the  judicial  power,  extended  by  the  third  article  to  all  cases  in  law 
and  equity  arising  under  the  Constitution,  the  laws  and  treaties  of  the 
United  States,  was  to  be  understood.  It  is  therefore  necessary  to  state  the 
action  upon  Article  VIII  of  the  draft  of  the  Constitution  reported  by  the 
Committee  of  Detail,  inasmuch  as  it  declared  the  Constitution,  the  acts  of 
Congress  made  in  pursuance  of  the  Constitution,  and  the  treaties  negotiated 
under  the  authority  of  the  United  States,  the  supreme  law  of  the  land,  bind- 
ing as  of  course  the  governments,  Federal  and  State,  and  all  officers,  State 
and  Federal,  political  or  judicial. 

It  was  clearly  the  intention  of  the  large  States,  as  indicated  in  the  Vir- 

1  Documriita'v  History,  Vol.  Ill,  pp.  669-70. 


PROTOTYPE    OF   A    COURT   OF    INTERNATIONAL    JUSTICE  275 

ginian  plan,  and  of  the  smaller  States,  as  set  forth  in  the  New  Jersey  plan, 
to  make  the  laws  of  the  new  Union  within  the  grant  of  power  superior  to 
the  laws  of  the  States  as  such.  As  amended  by  the  Committee,  the  sixth 
article  of  the  Virginian  plan  included  treaties  as  well.     Thus : 

The  Nat1.  Legislature  ought  to  be  empowered  ...  to  negative  all 
laws  passed  by  the  several  States  contravening  in  the  opinion  of  the 
National  Legislature,  the  articles  of  Union,  or  any  treaties  subsisting  under 
the  authority  of  the  Union.1 

This  was  even  more  explicitly  stated  in  the  sixth  article  of  the  New  Jersey 
plan,  reading  as  follows : 

Resd.  that  all  Acts  of  the  U.  States  in  Congs.  made  by  virtue  &  in  pur- 
suance of  the  powers  hereby  &  by  the  articles  of  confederation  vested  in 
them,  and  all  Treaties  made  &  ratified  under  the  authority  of  the  U.  States 
shall  be  the  supreme  law  of  the  respective  States  so  far  forth  as  those  Acts 
or  Treaties  shall  relate  to  the  said  States  or  their  Citizens,  and  that  the 
Judiciary  of  the  several  States  shall  be  bound  thereby  in  their  decisions, 
any  thing  in  the  respective  laws  of  the  Individual  States  to  the  contrary 
notwithstanding;  and  if  any  State,  or  any  body  of  men  in  any  State 
shall  oppose  or  prevent  ye.  carrying  into  execution  such  acts  or  treaties, 
the  federal  Executive  shall  be  authorized  to  call  forth  ye  power  of  the 
Confederated  States,  or  so  much  thereof  as  may  be  necessary  to  enforce 
and  compel  an  obedience  to  such  Acts,  or  an  Observance  of  such  Treaties.2 

The  Convention,  however,  did  not  approve  this  article.     On  July  17th 
the  following  proposal  was  before  the  Convention : 

To  negative  all  laws  passed  by  the  several  States  contravening  in  the 
opinion  of  the  Nat:  Legislature,  the  articles  of  Union,  or  any  treaties  sub- 
sisting under  the  authority  of  ye  Union.3 

After  much  debate  and  discussion,  this  proposition  was  adopted  by  a  vote 
of  seven  to  three  of  the  States.  Immediately  thereupon,  and  without  a 
break  in  the  proceedings,  Luther  Martin  of  Maryland  moved  the  following 
resolution,  which  was  unanimously  agreed  to  although  it  closely  followed 
the  New  Jersey  plan  which  had  been  rejected  in  all  its  parts: 

That  the  Legislative  acts  of  the  U.  S.  made  by  virtue  &  in  pursuance  of 
the  articles  of  Union,  and  all  treaties  made  &  ratified  under  the  authority 
of  the  U.  S.  shall  be  the  supreme  law  of  the  respective  States,  as  far  as 
those  acts  or  treaties  shall  relate  to  the  said  States,  or  their  Citizens  and 
inhabitants — &  that  the  Judiciaries  of  the  several  States  shall  be  bound 
thereby  in  their  decisions,  any  thing  in  the  respective  laws  of  the  individual 
States  to  the  contrary  notwithstanding.4 

1  Ibid.,  p.  121.    Session  of  June  13th. 
*  Ibid.,  pp.  127-8.     Session  of  June  15th. 
'Ibid.,  p.  351. 
'  Ibid.,  p.  353. 


276  THE    UNITED    STATES:   A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

The  resolution  proposed  by  Mr.  Martin  and  adopted  by  the  Convention 
was  referred  to  the  Committee  of  Detail,  which  reported  its  Article  VIII 
of  the  proposed  Constitution.  On  August  23  the  Convention  took  up  this 
article  as  reported  by  the  Committee  of  Detail,  and,  upon  Mr.  Rutledge's 
motion,  it  was  amended  and  unanimously  adopted  in  the  following  form : 

This  Constitution  &  the  laws  of  the  U.  S.  made  in  pursuance  thereof, 
and  all  Treaties  made  under  the  authority  of  the  U.  S.  shall  be  the  supreme 
law  of  the  several  States  and  of  their  citizens  and  inhabitants ;  and  the 
Judges  in  the  several  States  shall  be  bound  thereby  in  their  decisions,  any 
thing  in  the  Constitutions  or  laws  of  the  several  States,  to  the  contrary 
notwithstanding.1 

Mr.  Martin's  resolution  made  acts  of  Congress  within  the  grant  of  the 
Supreme  Constitution  and  the  treaties  negotiated  by  the  United  States  not  merely  the 

ilnd°  laws  of  the  United  States  but  of  each  State  of  the  Union,  in  so  far  as  the 

acts  or  treaties  relate  to  the  States.  Mr.  Rutledge's  amendment  added  the 
"  Constitution  "  and  struck  out  the  qualifying  clause  regarding  the  States, 
with  the  result  that  the  Constitution,  the  laws  of  the  United  States  made  in 
pursuance  of  the  Constitution,  and  the  treaties  of  the  United  States  likewise 
made  in  pursuance  of  the  Constitution  became  the  supreme  law  of  each  of 
the  States  to  the  same  extent  as  if  the  Constitution  had  been  drafted  by 
Conventions  held  within  the  States  instead  of  ratified  by  Conventions  spe- 
cially called  for  such  purpose  within  the  States. 

But  the  article  as  amended,  while  it  no  doubt  pleased  Mr.  Madison,  in 
that  the  Constitution,  laws  and  treaties  of  the  United  States  became  the  laws 
of  the  States  as- if  each  had  been  made  in  each  instance  by  each  of  the  States, 
did  not  please  him  in  the  matter  of  treaties,  as  he  was  set  upon  making  the 
clause  so  clear,  its  language  so  precise  and  its  meaning  so  unmistakable,  as 
to  give  to  the  treaty  paramount  effect,  in  order  to  enable  British  creditors 
to  recover  their  debts  in  accordance  with  the  treaty  of  1783  with  Great 
Britain  recognizing  the  independence  of  the  United  States.  In  a  letter 
written  to  Mr.  Randolph,  dated  April  4,  1787,  a  month  and  more  before  the 
meeting  of  the  Convention,  he  had  said : 

But  does  the  establishment  of  the  treaty  as  a  law  provide  certainly  for 
the  recovery  of  debts?  Ought  it  not  [to]  be  paramount  to  law;  or  at  least 
to  be  one  of  those  laws  which  are,  in  my  opinion,  beyond  repeal,  from  being 
combined  with  a  compact  ? 2 

1  Documentary  History,  Vol.  iii,  p.  600. 

'  M.  D.  Conway,  Omitted  Chapters  of  History  Disclosed  in  the  Life  and  Papers  of 
Edmund  Randolph,  1888,  p.  72. 


PROTOTYPE    OF    A    COURT   OF   INTERNATIONAL    JUSTICE  277 

Therefore,  on  August  25th,  two  days  after  the  adoption  of  Mr.  Rutledge's 
amendment,  Mr.  Madison,  seconded  by  Gouverneur  Morris,  proposed  to 
insert  after  "  all  treaties  made  "  the  phrase  "  or  which  shall  be  made,"  with 
the  following  result: 

And  all  treaties  made,  or  which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land. 

In  view  of  the  letter  to  Mr.  Randolph,  written  before  the  meeting  of 
the  Convention,  we  can  understand  the  purpose  which  Mr.  Madison  had  in 
mind;  but  it  was  not  enough  that  Mr.  Randolph  knew  it,  it  was  necessary 
that  the  members  of  the  Convention  should  know  it  and  share  it.  Therefore, 
in  proposing  the  amendment,  he  said,  as  he  records  in  his  Notes: 

This  insertion  was  meant  to  obviate  all  doubt  concerning  the  force  of 
treaties  preexisting,  by  making  the  words  "  all  treaties  made  "  to  refer  to 
them,  as  the  words  inserted  would  refer  to  future  treaties.1 

As  thus  amended,  the  article  was  referred  to  the  Committee  on  Style,2 
which  reported  it  back  to  the  Convention  in  its  present  form,  making  the 
Constitution,  the  acts  of  Congress  made  in  pursuance  thereof,  and  treaties 
of  the  United  States  "  the  supreme  law  of  the  land  "  instead  of  "  the  supreme 
law  of  the  respective  States," — an  expression  which  no  doubt  seemed  to 
them  to  be  a  difference  of  form  but  not  of  substance.  It  appears  that  this 
particular  phrase  was  one  with  which  the  men  of  affairs  of  the  day  were 
familiar,  inasmuch  as  eight  Constitutions  of  the  States  referred  to  "  the  law 
of  the  land,"  a  ninth  to  "  the  laws  of  the  land  " ;  and  that  the  Articles  of 
Confederation  were  considered  part  of  "  the  law  of  the  land  "  of  each  State. 
It  further  appears  that  the  treaty  with  Great  Britain  recognizing  the  inde- 
pendence of  the  States  and  its  provisions  were  stated  to  be  part  of  the  "  laws 
of  the  land  of  each  of  the  States  "  in  resolutions  unanimously  passed  by  the 
Congress  of  the  Confederation  on  March  21,  1787,  on  the  eve  of  the  Con- 
vention, and  in  the  Federal  letter  addressed  by  the  Congress  on  April  13, 
1787,  advocating  the  repeal  of  acts  of  the  State  inconsistent  with  the  terms 
of  that  treaty.3  These  details,  unimportant  in  themselves,  have  an  added 
interest  if  it  be  borne  in  mind  that  four  of  the  five  members  of  the  Com- 
mittee on  Style,  to  which  the  Constitution  was  referred  for  its  finishing 
touches,  were  members  of  the  Congress  which  had  adopted  the  resolutions 
and  addressed  the  Federal  letter  to  the  States.     Indeed  the  content  of  the 

1  Documentary  History,  Vol.  Ill,  p.  619. 

*  This  Committee  was  composed  of  Messrs.  Johnson,  Hamilton,  Morris,  Madison,  and 
King. 

"  Journals  of  the  American  Congress,  1823,  Vol.  IV,  pp.  735-8. 


278  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

resolutions  may  have  been  responsible  for  the  form  of  the  clause.  It  is  at 
least  in  conformity  with  the  relation  created  between  the  Government  of 
the  Union,  on  the  one  hand,  and  the  States,  on  the  other,  in  the  matter  of 
treaties.     The  resolutions  are  therefore  quoted : 

Resolved,  That  the  legislatures  of  the  several  states  cannot  of  right 
pass  any  act  or  acts,  for  interpreting,  explaining,  or  construing  a  national 
treaty  or  any  part  or  clause  of  it ;  nor  for  restraining,  limiting,  or  in  any 
manner  impeding,  retarding,  or  counteracting  the  operation  and  execution 
of  the  same,  for  that  on  being  constitutionally  made,  ratified  and  published, 
they  become  in  virtue  of  the  confederation,  part  of  the  law  of  the  land, 
and  are  not  only  independent  of  the  will  and  power  of  such  legislatures, 
but  also  binding  and  obligatory  on  them. 

Resolved,  That  all  such  acts  or  parts  of  acts  as  may  be  now  existing 
in  any  of  the  states,  repugnant  to  the  treaty  of  peace,  ought  to  be  forth- 
with repealed,  as  well  to  prevent  their  continuing  to  be  regarded  as  viola- 
tions of  that  treaty,  as  to  avoid  the  disagreeable  necessity  there  might 
otherwise  be  of  raising  and  discussing  questions  touching  their  validity  and 
obligation. 

Resolved,  That  it  be  recommended  to  the  several  states  to  make  such 
repeal  rather  by  describing  than  reciting  the  said  acts,  and  for  that  purpose 
to  pass  an  act  declaring  in  general  terms,  that  all  such  acts  and  parts  of 
acts,  repugnant  to  the  treaty  of  peace  between  the  United  States  and  his 
Britannic  majesty,  or  any  article  thereof,  shall  be,  and  thereby  are  repealed, 
and  that  the  courts  of  law  and  equity  in  all  causes  and  questions  cognizable 
by  them  respectively,  and  arising  from  or  touching  the  said  treaty,  shall 
decide  and  adjudge  according  to  the  true  intent  and  meaning  of  the  same, 
any  thing  in  the  said  acts  or  parts  of  acts  to  the  contrary  thereof  in  any  wise 
notwithstanding.1 

This  is  not  the  place  to  consider  the  origin,  nature  and  the  duty  of 
judges  to  declare  acts  of  Congress,  constitutions  and  statutes  of  the  States 
null  and  void  in  so  far  as  they  are  contrary  to  the  Constitution  of  the  United 
States,  which  is  also  the  Constitution  of  each  of  the  States  and  therefore 
their  fundamental  law.  It  is  nevertheless  advisable  to  mention  the  way  in 
which  the  judicial  power  of  the  United  States,  extended  to  cases  in  law  and 
equity  arising  under  the  Constitution,  acts  of  Congress  and  treaties,  taken 
in  connection  with  the  clause  of  the  Constitution  under  consideration, 
operates  and  renders  the  use  of  force  against  the  States  a  stranger  to  the 
American  system. 

It  was  admitted  on  all  sides  that  the  authority  of  the  United  States 
within  the  sphere  of  its  grant  by  the  States  should  prevail  within  the  States, 
because  the  grant  made  it  the  law  of  each  of  the  States.  That,  however, 
was  not  enough,  because  it  would  not,  on  that  account,  take  precedence  of 
another  or  subsequent  law  of  the  State.     By  making  the  Constitution,  the 

1  Journals  of  the  American  Congress,  1823,  Vol.  vi,  pp.  729-30.     Session  of  March  21st. 


PROTOTYPE    OF   A    COURT   OF   INTERNATIONAL    JUSTICE  279 

acts  of  Congress  passed  in  pursuance  thereof,  and  the  treaties  of  the  United 
States  negotiated  in  accordance  with  its  terms,  the  supreme  law  of  the  land 
of  each  of  the  States,  the  Constitution,  the  acts  of  Congress,  and  the  treaties 
became  laws  of  each  of  the  States,  just  as  if  they  had  originated  in  each  and 
had  been  made  for  each  and  by  each  for  itself. 

Admitting  this  to  be  so,  what  was  to  be  done  to  the  United  States 
if  a  State  framed  a  constitution  or  passed  a  law  inconsistent  with  the  Con- 
stitution? The  national  legislature  ought  to  possess  the  power  "to  nega- 
tive all  laws,"  said  Mr.  Madison,  supposing  him  to  have  been  the  author 
of  the  Virginian  plan,  "  passed  by  the  several  States,  contravening  in  the 
opinion  of  the  National  Legislature  the  articles  of  Union;  and  to  call  forth 
the  force  of  the  Union  agst.  any  member  of  the  Union  failing  to  fulfil  its 
duty  under  the  articles  thereof."  1  But  a  little  reflection  caused  him  to  Question  of 
renounce  the  plan  of  coercing  the  States,  which  he  did  on  the  floor  of  the  Sanctl0n 
Convention  within  two  days  of  its  first  session,2  ultimately  and  with  much 
misgiving  relying  upon  the  intervention  of  the  courts  to  prevent  a  difficulty 
which  he  foresaw  might  present  itself.  Again,  what  was  to  be  done  with 
an  act  of  Congress  itself  contrary  to  the  terms  of  the  Constitution?  Have 
it  passed  upon  by  a  council  of  revision,  of  which  judges  of  the  Supreme 
Court  should  be  members,  said  Mr.  Madison,  and  he  and  his  friends  clung 
to  each  of  these  proposals  with  dogged  pertinacity. 

But  the  Convention  was  wiser  than  any  of  its  members,  including  even  gfe{^°\ 
the  father  of  the  Constitution.  Admitting  the  necessity  of  coercion,  the  of°Force 
enlightened  body  preferred  the  coercion  of  law  to  the  coercion  of  force,  and 
in  entrusting  the  interpretation  of  the  laws  to  the  courts  and,  in  last  resort, 
to  the  Supreme  Court  of  the  United  States.  As  a  step  toward  the  desired 
goal,  the  judicial  power  of  the  United  States  was  extended  to  all  cases  in 
law  and  equity  arising  under  the  Constitution,  acts  of  Congress  passed  in 
pursuance  thereof,  and  treaties  made  according  to  its  terms.  These  were 
declared  not  merely  the  law  of  each  of  the  States  but  the  supreme  law  of 
the  States,  and  this  extension  of  the  judicial  power  enabled  any  person  in 
any  State  of  the  Union  injured  in  his  person  or  property  to  test  the  validity 
of  the  interpretation  given  to  the  Constitution,  the  validity  of  the  law  or  of 
the  treaty  in  a  court  of  justice  as  a  case  in  law  or  equity,  as  it  arose  under 
one  or  the  other  heading.  In  the  course  of  the  trial  the  Constitution  would 
necessarily  be  interpreted  and  applied  by  the  court.  The  act  of  Congress 
or  treaty  would  be  declared  to  be  either  in  accord  with  the  Constitution  or 
contrary  to  it.  In  the  latter  case  the  act  or  treaty  would  be  held  null  and 
void,  and  the  transaction  whereof  the  litigant  complained  would  be  illegal 


1  Documentary  History,  Vol.  Ill,  p.  18.    Session  of  May  29th. 
'Ibid.,  pp.  33-4.    Session  of  May  31st. 


280  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

and  the  injury  to  person  and  property  redressed.  The  incorrect  interpreta- 
tion of  the  Constitution  of  the  Union  or  of  the  States,  the  treaty  itself,  and 
the  statute  of  Congress  or  of  the  States,  would  be  set  aside  in  the  sense  that 
it  would  not  be  regarded  by  the  court  as  a  justification  for  the  act  committed 
under  its  cover.  Repeated  acts  of  a  like  nature  would  be  declared  illegal 
by  the  courts,  so  that,  to  all  intents  and  purposes,  the  interpretation  of  the 
Constitution  of  the  United  States,  upon  which  reliance  was  based,  would  be 
disapproved,  and  the  act  or  treaty  involved  declared  to  be  to  all  intents  and 
purposes  invalid.  The  purposes  which  Mr.  Madison  and  his  friends  had  in 
mind  would  be  accomplished  without  the  intervention  of  force  and  the  State 
itself  would  not  be  involved,  inasmuch  as  the  suit  was  against  an  individual 
of  the  State  claiming  under  its  authority  as  a  defense  for  his  action.  This 
process  and  its  results  have  never  been  more  adequately  or  more  happily 
described  than  by  Sir  Henry  Maine  in  the  following  passage,  to  be  found 
in  his  essay  on  the  Constitution  of  the  United  States: 

The  Supreme  Court  of  the  United  States,  which  is  the  American  Fed- 
eral institution  next  claiming  our  attention,  is  not  only  a  most  interesting 
but  a  virtually  unique  creation  of  the  founders  of  the  Constitution.  The 
functions  which  the  Judges  of  this  Court  have  to  discharge  under  provi- 
sions of  the  Constitution  arise  primarily  from  its  very  nature.  The  Execu- 
tive and  Legislative  authorities  of  the  United  States  have  no  powers,  except 
such  as  are  expressly  conferred  on  them  by  the  Constitution  itself ;  and, 
on  the  other  hand,  the  several  States  are  forbidden  by  the  Constitution  to 
do  certain  acts  and  to  pass  certain  laws.  What  then  is  to  be  done  if  these 
limitations  of  power  are  transgressed  by  any  State,  or  by  the  United 
States?  The  duty  of  annulling  such  usurpations  is  confided  by  the  Third 
Article  of  the  Constitution  to  the  Supreme  Court,  and  to  such  inferior 
Courts  as  Congress  may  from  time  to  time  ordain  and  establish.  But  this 
remarkable  power  is  capable  only  of  indirect  exercise ;  it  is  called  into 
activity  by  "  cases,"  by  actual  controversies,  to  which  individuals,  or  States, 
or  the  United  States,  are  parties.  The  point  of  unconstitutionality  is  raised 
by  the  arguments  in  such  controversies ;  and  the  decision  of  the  Court  fol- 
lows the  view  which  it  takes  of  the  Constitution.  A  declaration  of  uncon- 
stitutionality, not  provoked  by  a  definite  dispute,  is  unknown  to  the  Supreme 
Court. 

The  success  of  this  experiment  has  blinded  men  to  its  novelty.  There 
is  no  exact  precedent  for  it,  either  in  the  ancient  or  in  the  modern  world. 
The  builders  of  Constitutions  have  of  course  foreseen  the  violation  of  con- 
stitutional rules,  but  they  have  generally  sought  for  an  exclusive  remedy, 
not  in  the  civil,  but  in  the  criminal  law,  through  the  impeachment  of  the 
offender.  And,  in  popular  governments,  fear  or  jealousy  of  an  authority 
not  directly  delegated  by  the  people  has  too  often  caused  the  difficulty  to  be 
left  for  settlement  to  chance  or  to  the  arbitrament  of  arms.  "  Je  ne  pense 
pas,"  wrote  De  Tocqueville,  in  his  "Democratic  en  Amerique,"  "que 
jusqu'  a  present  aucune  nation  du  monde  ait  constitue  le  pouvoir  judiciaire 
de  la  meme  maniere  que  les  Americains."  1 

1  Maine,  Popular  Government,  1886,  pp.  217-8. 


PROTOTYPE    OF    A    COURT    OF    INTERNATIONAL   JUSTICE  281 

The  coercion  of  law  was  consciously  preferred  to  the  coercion  of  force, 
and  the  members  of  the  Convention  were  themselves  aware  of  the  success 
of  their  labors.  Thus,  Mr.  Madison,  in  a  letter  already  quoted  to  his  friend 
Thomas  Jefferson  after  the  close  of  the  Convention,  said : 

A  voluntary  observance  of  the  federal  law  by  all  the  members  could 
never  be  hoped  for.  A  compulsive  one  could  evidently  never  be  reduced 
to  practice,  and  if  it  could,  involved  equal  calamities  to  the  innocent  and 
the  guilty,  the  necessity  of  a  military  force,  both  obnoxious  and  dangerous, 
and,  in  general,  a  scene  resembling  much  more  a  civil  war  than  the  admin- 
istration of  a  regular  Government.  Hence  was  embraced  the  alternative 
of  a  Government  which,  instead  of  operating  on  the  States,  should  operate 
without  their  intervention  on  the  individuals  composing  them.1 

But  the  most  notable  and  far-reaching  statement  is  that  likewise  previously 
quoted  of  Mr.  Oliver  Ellsworth,  a  delegate  from  Connecticut,  soon  to  be  a 
Senator  under  the  Constitution  which  he  had  helped  to  frame  and  Chief 
Justice  of  the  Supreme  Court  of  the  United  States.  In  the  convention  of 
Connecticut,  called  to  ratify  the  Constitution,  Mr.  Ellsworth  used,  it  may 
appropriately  be  said,  the  language  of  advocate  and  of  statesman,  of  com- 
mentator and  of  prophet : 

This  Constitution  defines  the  extent  of  the  powers  of  the  general  gov- 
ernment. If  the  general  legislature  should  at  any  time  overleap  their 
limits,  the  judicial  department  is  a  constitutional  check.  If  the  United 
States  go  beyond  their  powers,  if  they  make  a  law  which  the  Constitution 
does  not  authorize,  it  is  void;  and  the  judicial  power,  the  national  judges, 
who,  to  secure  their  impartiality,  are  to  be  made  independent,  will  declare 
it  to  be  void.  On  the  other  hand,  if  the  states  go  beyond  their  limits,  if 
they  make  a  law  which  is  a  usurpation  upon  the  general  government  the 
law  is  void ;  and  upright,  independent  judges  will  declare  it  to  be  so.  Still, 
however,  if  the  United  States  and  the  individual  states  will  quarrel,  if  they 
want  to  fight,  they  may  do  it,  and  no  frame  of  government  can  possibly 
prevent  it.  It  is  sufficient  for  this  Constitution,  that,  so  far  from  laying 
them  under  a  necessity  of  contending,  it  provides  every  reasonable  check 
against  it.  But  perhaps,  at  some  time  or  other,  there  will  be  a  contest; 
the  states  may  rise  against  the  general  government.  If  this  do  take  place, 
if  all  the  states  combine,  if  all  oppose,  the  whole  will  not  eat  up  the  mem- 
bers, but  the  measure  which  is  opposed  to  the  sense  of  the  people  will 
prove  abortive.    .    .    . 

Hence  we  see  how  necessary  for  the  Union  is  a  coercive  principle.  No 
man  pretends  the  contrary :  we  all  see  and  feel  this  necessity.  The  only 
question  is,  Shall  it  be  a  coercion  of  law,  or  a  coercion  of  arms?  There  is 
no  other  possible  alternative.  Where  will  those  who  oppose  a  coercion  of 
law  come  out?  Where  will  they  end?  A  necessary  consequence  of  their 
principles  is  a  war  of  the  states  one  against  the  other.  I  am  for  coercion 
by  law — that  coercion  which  acts  only  upon  delinquent  individuals.  This 
Constitution  does  not  attempt  to  coerce  sovereign  bodies,  states,  in  their 

1  The  Writings  of  James  Madison,  Hunt  ed.,  Vol.  V,  p.  19.    Letter  of  October  24,  1787. 


282  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

political  capacity.  No  coercion  is  applicable  to  such  bodies,  but  that  of  an 
armed  force.  If  we  should  attempt  to  execute  the  laws  of  the  Union  by 
sending  an  armed  force  against  a  delinquent  state,  it  would  involve  the  good 
and  the  bad,  the  innocent  and  guilty,  in  the  same  calamity. 

But  this  legal  coercion  singles  out  the  guilty  individual,  and  punishes 
him  for  breaking  the  laws  of  the  Union.1 

It  is  obvious  that  the  Society  of  Nations  will  be  confronted  with  problems 
similar  to  if  not  identical  with  the  problems  which  faced  the  framers  of  the 
American  Constitution  when  they  set  about  to  create  a  Supreme  Court  of  the 
Union  which  they  were  rendering  more  perfect.  The  Convention  creating  the 
closer  union  of  the  Society,  like  the  Constitution  creating  the  more  perfect 
union  of  American  States,  will  need  to  be  interpreted,  and  the  experience  of 
the  United  States  shows  that  this  can  best  be  done  by  a  permanent  court  of 
the  union. 

General  conventions  or  special  treaties  to  which  States  of  the  Society  of 
Nations  are  parties,  will  need  to  be  interpreted ;  but,  here  again,  the  experience 
of  the  American  Union,  with  its  tribunal,  should  be  enlightening. 

A  court  of  the  Society  will  necessarily  be  a  court  of  limited  jurisdiction; 
but,  with  the  growth  of  confidence  in  that  tribunal,  its  jurisdiction  will  be 
enlarged  in  the  way  pointed  out  by  the  Supreme  Court  itself ;  that  is  to  say, 
by  an  agreement  to  submit  to  the  tribunal  questions  hitherto  considered  politi- 
cal, questions  which,  by  the  very  act  of  submission,  become  judicial. 

Gradually,  as  the  result  of  experience,  the  usefulness  of  the  court  will 
be  thus  enhanced.  The  possibility  of  the  substitution  of  law  for  physical 
force  may  dawn  upon  the  statesmen  of  the  modern  world  just  as  it  dawned 
upon  the  framers  of  the  American  Union,  and  the  conduct  of  nations,  like 
the  conduct  of  States  of  the  American  Union,  be  guided  and  eventually  con- 
trolled by  the  principles  of  justice. 

Coercion  there  must  be,  for  nations,  as  shown  by  experience,  are  even 
less  inclined  than  individuals  to  brook  control;  but  the  choice  is,  and  it  is 
believed  the  choice  must  always  be,  either  for  the  coercion  of  law,  or  for 
the  coercion  of  arms. 

1  Elliot,  Debates,  Vol.  II,  pp.  196-7. 


XIV 
THE  ADMISSION  OF  NEW  STATES 

No  principle  of  general  law  is  more  universally  acknowledged,  than  the  perfect  equality 
of  nations.  Russia  and  Geneva  have  equal  rights.  It  results  from  this  equality,  that  no  one 
can  rightfully  impose  a  rule  on  another.  Each  legislates  for  itself,  but  its  legislation  can 
operate  on  itself  alone.  A  right,  then,  which  is  vested  in  all,  by  the  consent  of  all,  can 
be  divested  only  by  consent ;  and  this  trade,  in  which  all  have  participated,  must  remain 
lawful  to  those  who  cannot  be  induced  to  relinquish  it.  As  no  nation  can  prescribe  a  rule 
for  others,  none  can  make  a  law  of  nations;  and  this  traffic  remains  lawful  to  those  whose 
governments  have  not  forbidden  it.  (Chief  Justice  Marshall  in  The  Antelope,  10  Wh-eaton, 
66,  122,  decided  in  1825.) 

Section  13.  And  for  extending  the  fundamental  principles  of  civil  and  religious  liberty, 
which  form  the  basis  whereon  these  republics,  their  laws  and  constitutions,  are  erected; 
to  fix  and  establish  those  principles  as  the  basis  of  all  laws,  constitutions,  and  govern- 
ments, which  forever  hereafter  shall  be  formed  in  the  said  territory;  to  provide,  also,  for 
the  establishment  of  States,  and  permanent  government  therein,  and  for  their  admission 
to  a  share  in  the  Federal  councils  on  an  equal  footing  with  the  original  States,  at  as  early 
periods  as  may  be  consistent  with  the  general  interest: 

Section  14.  It  is  hereby  ordained  and  declared,  by  the  authority  aforesaid,  that  the 
following  articles  shall  be  considered  as  articles  of  compact,  between  the  original  States 
and  the  people  and  States  in  the  said  territory,  and  forever  remain  unalterable,  unless  by 
common  consent,  to  wit: 

Article  I.  No  person,  demeaning  himself  in  a  peaceable  and  orderly  manner,  shall 
ever  be  molested  on  account  of  his  mode  of  worship,  or  religious  sentiments,  in  the 
said  territories. 

Article  II.  The  inhabitants  of  the  said  territory  shall  always  be  entitled  to  the 
benefits  of  the  writs  of  habeas  corpus,  and  of  the  trial  by  jury;  of  a  proportionate 
representation  of  the  people  in  the  legislature,  and  of  judicial  proceedings  according  to 
the  course  of  the  common  law.  All  persons  shall  be  bailable,  unless  for  capital  offences, 
where  the  proof  shall  be  evident,  or  the  presumption  great.  All  fines  shall  be  mod- 
erate; and  no  cruel  or  unusual  punishments  shall  be  inflicted.  No  man  shall  be  deprived 
of  his  liberty  or  property,  but  by  the  judgment  of  his  peers,  or  the  law  of  the  land, 
and  should  the  public  exigencies  make  it  necessary,  for  the  common  preservation,  to 
take  any  person's  property,  or  to  demand  his  particular  services,  full  compensation  shall 
be  made  for  the  same.  And,  in  the  just  preservation  of  rights  and  property,  it  is 
understood  and  declared,  that  no  law  ought  ever  to  be  made,  or  have  force  in  the  said 
territory,  that  shall,  in  any  manner  whatever,  interfere  with  or  affect  private  contracts, 
or  engagements,  bona  fide,  and  without  fraud  previously  formed. 

Article  III.  Religion,  morality,  and  knowledge  being  necessary  to  good  government 
and  the  happiness  of  mankind,  schools  and  the  means  of  education  shall  forever  be 
encouraged.   .    . 

Article  IV.  The  said  territory,  and  the  States  which  may  be  formed  therein,  shall 
forever  remain  a  part  of  this  confederacy  of  the  United  States  of  America,  subject  to 
the  Articles  of  Confederation,  and  to  such  alterations  therein  as  shall  be  constitu- 
tionally made :  and  to  all  the  acts  and  ordinances  of  the  United  States  in  Congress 
assembled,  conformable  thereto.  .    .    . 

Article  V.  There  shall  be  formed  in  the  said  territory  not  less  than  three  nor 
more  than  five  States :  and  the  boundaries  of  the  States,  as  soon  as  Virginia  shall  alter 
her  act  of  cession  and  consent  to  the  same,  shall  become  fixed  and  established  as 
follows,  to  wit :  .    .    . 

And  whenever  any  of  the  said  States  shall  have  sixty  thousand  free  inhabitants 
therein,  such  State  shall  be  admitted,  by  its  delegates,  into  the  Congress  of  the  United 
States,  on  an  equal  footing  with  the  original  States,  in  all  respects  whatever;  and  shall 

283 


284  THE  UNITED  STATES:  A  STUDY  IN  INTERNATIONAL  ORGANIZATION 

be  at  liberty  to  form  a  permanent  constitution  and  State  government:  Provided,  The 
constitution  and  government,  so  to  be  formed,  shall  be  republican,  and  in  conformity 
to  the  principles  contained  in  these  articles,  and,  so  far  as  it  can  be  consistent  with 
the  general  interest  of  the  confederacy,  such  admission  shall  be  allowed  at  an  earlier 
period,  and  when  there  may  be  a  less  number  of  free  inhabitants  in  the  State  than 
sixty  thousand. 

Article  VI.  There  shall  be  neither  slavery  nor  involuntary  servitude  in  the  said 
territory,  otherwise  than  in  the  punishment  of  crimes,  whereof  the  party  shall  have 
been  duly  convicted;  Provided  always.  That  any  person  escaping  into  the  same,  from 
whom  labor  or  service  is  lawfully  claimed  in  any  one  of  the  original  States,  such 
fugitive  may  be  lawfully  reclaimed,  and  conveyed  to  the  person  claiming  his  or  her 
labor  or  service  as  aforesaid.  (An  Ordinance  for  the  government  of  the  territory  of 
the  United  States  northwest  of  the  river  Ohio,  July  13,  1787,  Revised  Statutes  of  the 
United  States,  1S78,  pp.  15  -16.) 

Section  3.  New  States  may  be  admitted  by  the  Congress  into  this  Union ;  but  no  new 
State  shall  be  formed  or  erected  within  the  jurisdiction  of  any  other  State;  nor  any  State 
be  formed  by  the  junction  of  two  or  more  States,  or  Parts  of  States,  without  the  Consent 
of  the  Legislatures  of  the  States  concerned  as  well  as  of  the  Congress. 

The  Congress  shall  have  Power  to  dispose  of  and  make  all  needful  Rules  and  Regulations 
respecting  the  Territory  or  other  Property  belonging  to  the  United  States;  and  nothing  in 
this  Constitution  shall  be  so  construed  as  to  Prejudice  any  Claims  of  the  United  States,  or 
of  any  particular  State. 

Section  4.  The  United  States  shall  guarantee  to  every  State  in  this  Union  a  Repub- 
lican Form  of  Government,  and  shall  protect  each  of  them  against  Invasion;  and  on  Appli- 
cation of  the  Legislature,  or  of  the  Executive  (when  the  Legislature  cannot  be  convened) 
against  domestic  Violence.     (Constitution  of  the  United  States,  Article  IV.) 

So  far  as  this  court  has  found  occasion  to  advert  to  the  effect  of  enabling  acts  as 
affirmative  legislation  affecting  the  power  of  new  States  after  admission,  there  is  to  be 
found  no  sanction  for  the  contention  that  any  State  may  be  deprived  of  any  of  the  power 
constitutionally  possessed  by  other  States,  as  States,  by  reason  of  the  terms  in  which  the 
acts  admitting  them  to  the  Union  have  been  framed.   .    .    . 

The  plain  deduction  from  this  case  [Pollard's  Lessee  v.  Hagan,  3  Howard,  212,  decided 
in  1S4S]  is  that  when  a  new  State  is  admitted  into  the  Union,  it  is  so  admitted  with  all 
of  the  powers  of  sovereignty  and  jurisdiction  which  pertain  to  the  original  States,  and 
that  such  powers  may  not  be  constitutionally  diminished,  impaired  or  shorn  away  by 
any  conditions,  compacts  or  stipulations  embraced  in  the  act  under  which  the  new  State 
came  into  the  Union,  which  would  not  be  valid  and  effectual  if  the  subject  of  congressional 
legislation  after  admission.   .    .    . 

Has  Oklahoma  been  admitted  upon  an  equal  footing  with  the  original  States?  If 
she  has,  she  by  virtue  of  her  jurisdictional  sovereignty  as  such  a  State  may  determine 
for  her  own  people  the  proper  location  of  the  local  seat  of  government.  She  is  not  equal 
in  power  to  them  if  she  cannot. 

In  Texas  v.  White,  7  Wall.  700.  725,  Chief  Justice  Chase  said  in  strong  and  memorable 
language  that,  "  the  Constitution,  in  all  of  its  provisions  looks  to  an  undestructible  Union, 
composed  of  indestructible  States." 

In  Lane  County  v   Oregon,  7  Wall.  76,  he  said: 

"  The  people  of  the  United  States  constitute  one  nation,  under  one  government,  and 
this  government,  within  the  scope  of  the  powers  with  which  it  is  invested,  is  supreme. 
On  the  other  hand,  the  people  of  each  State  compose  a  State,  having  its  own  govern- 
ment, and  endowed  with  all  the  functions  essential  to  separate  and  independent  existence. 
The  States  disunited  might  continue  to  exist.  Without  the  States  in  union  there  could 
be  no  such  political  body  as  the  United  States." 

To  this  we  may  add  that  the  constitutional  equality  of  the  States  is  essential  to  the 
harmonious  operation  of  the  scheme  upon  which  the  Republic  was  organized  When 
that  equality  disappears  we  may  remain  a  free  people,  but  the  Union  will  not  be  the 
Union  of  the  Constitution  (Mr.  Justice  Lurton  in  Coyle  v.  Smith,  221  United  States 
Reports,  559,  57°,  573,  579-58°.  decided  in  ion.) 

So  the  Constitution  operated  to  incorporate  such  of  the  old  states  as  ratified  it:  so 
it  did  as  new  states  have  been  admitted :  so  it  must  operate  in  future.  It  was  a  cession, 
by  nine  states,  of  so  much  of  their  separate  power  as  was  necessary  for  federal  purposes, 
to  the  body  politic,  called  the  United   States,  the   "  American   Confederacy,"    "  Republic,'* 


THE  ADMISSION    OF    NEW    STATES 


285 


or  "  Empire " ;  as  a  term  of  designation,  including  states  and  territories.  The  consti- 
tution was  the  charter  of  this  federal  corporation,  as  those  of  the  different  states  were 
the  charters  of  their  state  corporations  of  government;  each  with  power  to  legislate  accord- 
ing to  the  terms  of  their  respective  charters,  subject  only  to  that  charter  which  had  been 
made  supreme  for  its  designated  purposes.  (Mr.  Justice  Baldwin,  A  General  View  of  the 
Origin  and  Nature  of  the  Constitution  and  Government  of  the  United  States,  1837,  p.  84.) 


CHAPTER  XIV 


THE    ADMISSION    OF    NEW    STATES 


The  As  throwing  very  great  light  upon  the  views  of  public  men  at  the  time 

ordinance  of  the  Constitution,  the  Act  of  Congress  of  July  13,  1787,  commonly  called 

the  Northwest  Ordinance,1  should  receive  careful  attention,  because  it  was 
passed  at  the  very  time  when  the  Federal  Convention  was  in  session.  Indeed 
some  of  the  members  of  the  Convention  were  obliged  to  absent  themselves 
in  order  to  take  part  in  the  Congress  then  meeting  in  New  York. 

It  is  also  important  to  note  in  this  connection  that  the  ordinance  was 
approved  by  the  Act  of  August  7,  1789,  passed  by  the  first  Congress  held 
under  the  Constitution,  which  continued  it  in  effect.2  The  ordinance  there- 
fore has  the  double  advantage  in  its  favor,  of  being  drafted  and  promulgated 
during  the  session  of  the  Federal  Convention,  and  of  being  approved  by 
the  government  installed  under  the  Constitution. 

The  purpose  of  the  Act  is  stated  in  its  title,  "  An  Ordinance  for  the  Gov- 
ernment of  the  Territory  of  the  United  States  north-west  of  the  river  Ohio," 
that  vast  tract  of  territory  ceded  to  the  United  States  March  1,  1784,  by 
the  Virginian  delegates  in  Congress,  pursuant  to  the  authorization  of  the 
General  Assembly  of  that  great  State,  December  20,  1783,  by  which  the 
struggling  Confederation  became  possessed  of  an  imperial  domain,  so  that 
if  Virginia  can  be,  as  it  has  been  called,  the  mother  of  Presidents,  it  can, 
with  equal  propriety,  be  called  the  mother  of  States. 

The  ordinance  consists  practically  of  two  parts,  the  first  of  thirteen  sec- 
tions dealing  with  the  organization  of  a  government  for  the  territory  and 
with  the  details  of  that  government;  the  second  of  six  articles  appended  to 
the  fourteenth  section  in  the  nature  of  a  bill  of  rights,  termed  in  the  Act 
itself,  "  articles  of  compact,  between  the  original  states  and  the  people  and 
states  in  the  said  territory,"  and  to  "  remain  unalterable,  unless  by  common 
consent." 

For  purposes  of  government,  this  vast  tract  was  to  be  considered  as  a 
single  district,  to  be  subject  to  future  division  by  Congress.  A  governor, 
to  reside  in  the  district,  was  to  be  appointed  by  the  Congress  for  a  period 
of  three  years  "  unless  sooner  revoked  by  Congress."  There  was  to  be  a 
General  Assembly  or  a  Legislature,  and  there  was  to  be  a  court.     We  thus 

1  Journals  of  the  American  Congress,  Vol.  IV,  pp.  752-4. 
*  U.  S.  Statutes  at  Large,  vol.  IS,  p.  50. 

286 


THE    ADMISSION    OF    NEW    STATES  287 

have  the  three  branches  of  government,  beginning,  however,  with  the  execu- 
tive, instead  of  the  legislative,  as  in  the  Constitution,  apparently  because  the 
executive  was  to  prepare  the  way  for  the  other  branches. 

As  the  judges  were  to  cooperate  with  him  in  this  task,  the  judiciary  is 
mentioned  before  the  creation  of  the  legislature,  and  the  determination  of 
its  functions.  Thus  it  is  stated  in  Section  4  that  "  There  shall  also  be 
appointed  a  court  to  consist  of  three  judges,  any  two  of  whom  to  form  a 
court,  who  shall  have  a  common  law  jurisdiction,  and  reside  in  the  district 
.    .    .   and  their  commissions  shall  continue  in  force  during  good  behaviour." 

The  first  need  of  a  district  was  order,  and  this  was  to  be  brought  about 
through  law.  Therefore  it  was  provided  in  Section  5  that  "  The  governor 
and  judges,  or  a  majority  of  them,  shall  adopt  and  publish  in  the  district 
such  laws  of  the  original  states,  criminal  and  civil,  as  may  be  necessary,  and 
best  suited  to  the  circumstances  of  the  district,  and  report  them  to  Congress, 
from  time  to  time."  These  laws  were  to  be  in  force,  unless  disapproved  by 
Congress,  until  the  organization  of  the  General  Assembly,  and  subject  to 
that  body  when  it  should  come  into  being. 

The  governor  was  to  be  commander-in-chief  of  the  militia,  to  appoint 
and  commission  all  below  the  rank  of  general  officers,  who  were  to  be 
appointed  and  commissioned  by  Congress.  And  the  governor,  prior  to  the 
meeting  of  the  General  Assembly,  was  to  appoint  magistrates  and  other  civil 
officers  in  each  county  or  township,  and  indeed,  to  appoint  all  magistrates 
and  other  civil  officers,  not  otherwise  provided  for,  during  the  continuance 
of  the  temporary  government,  the  duties  and  powers  whereof  were  to  be 
fixed  by  the  General  Assembly  when  organized.  It  was  also  the  duty  of  the 
governor  to  see  to  the  execution  of  the  laws,  and  to  execute  civil  and 
criminal  processes. 

Whenever  there  were  in  the  district  five  thousand  free  male  inhabitants 
of  full  age,  a  General  Assembly  was  to  be  established,  with  one  representa- 
tive for  every  five  hundred  such  inhabitants  until  the  number  of  represen- 
tatives should  increase  to  twenty-five,  after  which  the  proportion  of 
representatives  was  to  be  regulated  by  the  legislature,  and  the  representatives 
themselves  were  to  be  elected  for  a  period  of  two  years.  The  provisions 
contained  in  Section  11  concerning  the  General  Assembly  are  of  especial 
interest,  inasmuch  as  they  show  the  Congress  drawing  upon  the  experience 
of  the  colonists,  as  was  to  be  expected,  and  which,  indeed,  could  hardly  be 
obviated.  Thus,  the  General  Assembly  or  Legislature  was  to  consist  of 
"  the  governor,  legislative  council,  and  a  house  of  representatives."  The 
council  was  to  consist  of  five  members  to  serve  for  a  period  of  five  years, 
unless  sooner  removed  by  Congress,  and  any  three  of  them  were  to  consti- 
tute a  quorum.     The  legislature  was  to  present  the  name  of  ten  persons  to 


288 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL    ORGANIZATION 


Compact 
Between 
People  of 
States  and 
Northwestern 
Territory 


the  Congress,  from  whom  that  body  should  choose  five,  and  upon  a  vacancy, 
two  names,  from  which  the  Congress  should  choose  one.  This  process  was 
apparently  to  be  repeated  four  months  before  the  expiration  of  the  five  year 
term. 

The  governor,  appointed  by  the  Congress,  the  legislative  council,  likewise 
appointed  by  the  Congress,  and  the  house  of  representatives  elected  by  the 
inhabitants  having  the  necessary  qualifications,  were  vested  with  the 
authority  to  "  make  laws,  in  all  cases,  for  the  good  government  of  the  dis- 
trict, not  repugnant  to  the  principles  and  articles  in  this  ordinance  estab- 
lished and  declared."  And  it  was  further  provided  that  "  all  bills  having 
passed  by  a  majority  in  the  house,  and  by  a  majority  in  the  council  "  were 
to  be  referred  to  the  governor  for  his  assent,  and  that  "  no  bill  or  legisla- 
tive act  whatever,  shall  be  of  any  force  without  his  assent." 

Here  we  have  the  colonial  governor,  the  governor's  council,  and  the 
assembly  with  the  power  of  veto  of  the  governor,  who  was,  in  addition,  to 
possess  the  power  "  to  convene,  prorogue  and  dissolve  the  general  assembly  " 
when  in  his  opinion  it  should  be  expedient. 

Inasmuch  as  the  colonists  maintained  that  taxation  without  representa- 
tion was  tyranny,  the  council  and  house  in  joint  session  and  by  joint  ballot 
were  to  elect  a  delegate  to  the  Congress  who  should  have  a  seat  therein 
"  with  the  right  of  debating,  but  not  of  voting  during  this  temporary  gov- 
ernment." The  members  of  Congress  recognized  the  gravity  of  the  step 
they  were  taking,  and  the  necessity  of  putting  into  practice  the  doctrine  they 
had  preached.  They  therefore  prefixed  to  the  declaration  of  rights  which 
they  expressly  termed  a  "  compact  between  the  original  states,  and  the 
people  and  states  in  the  said  territory,"  what  may  be  called  a  preamble  "  for 
extending  the  fundamental  principles  of  civil  and  religious  liberty,  which 
form  the  basis  whereon  these  republics  [apparently  the  thirteen  original 
States],  their  laws  and  constitutions  are  erected;  to  fix  and  establish  those 
principles  as  the  basis  of  all  laws,  constitutions  and  governments,  which 
forever  hereafter  shall  be  formed  in  the  said  territory;  to  provide  also  for 
the  establishment  of  states,  and  permanent  government  therein,  and  for  their 
admission  to  a  share  in  the  federal  councils  on  an  equal  footing  with  the 
original  states,  at  as  early  periods  as  may  be  consistent  with  the  general 
interest." 

The  first  two  Articles  are  thus  worded: 

Art.  1st.  No  person,  demeaning  himself  in  a  peaceable  and  orderly 
manner,  shall  ever  be  molested  on  account  of  his  mode  of  worship  or 
religious  sentiments,  in  the  said  territory. 

Art.  2d.  The  inhabitants  of  the  said  territory,  shall  always  be  entitled 
to  the  benefits  of  the  writ  of  habeas  corpus,  and  of  the  trial  by  jury;  of 


i  HE    ADMISSION    OF    NEW    STATES  289 

a  proportionate  representation  of  the  people  in  the  legislature,  and  of  judi- 
cial proceedings  according  to  the  course  of  the  common  law.  All  persons 
shall  be  bailable,  unless  for  capital  offences,  where  the  proof  shall  be  evi- 
dent, or  the  presumption  great.  All  fines  shall  be  moderate ;  and  no  cruel 
or  unusual  punishments  shall  be  inflicted.  No  man  shall  be  deprived  of  his 
liberty  or  property,  but  by  the  judgment  of  his  peers,  or  the  law  of  the 
land,  and  should  the  public  exigencies  make  it  necessary,  for  the  common 
preservation,  to  take  any  person's  property,  or  to  demand  his  particular 
services,  full  compensation  shall  be  made  for  the  same.  And  in  the  just 
preservation  of  rights  and  property,  it  is  understood  and  declared,  that  no 
law  ought  ever  to  be  made,  or  have  force  in  the  said  territory,  that  shall, 
in  any  manner  whatever,  interfere  with,  or  affect  private  contracts  or 
engagements,  bona  fide,  and  without  fraud  previously  formed. 

The  fourth  Article  is  interesting,  as  it  subjects  the  territory  to  the  Arti- 
cles of  Confederation,  the  alterations  made  therein,  "  and  to  all  the  acts  and 
ordinances  of  the  United  States  in  Congress  assembled,  conformable 
thereto." 

This  is  clearly  imperialism :  the  district  subject  to  the  realm;  to  acts  made 
in  accordance  with  its  Constitution  by  the  framers  thereof.  Nay  more,  the 
inhabitants  and  settlers  within  the  territory  were  "  to  pay  a  part  of  the  fed- 
eral debts,  contracted  or  to  be  contracted,  and  a  proportional  part  of  the 
expenses  of  government,  to  be  apportioned  on  them  by  Congress,  according 
to  the  same  common  rule  and  measure,  by  which  apportionments  thereof 
shall  be  made  on  the  other  states."  The  taxes,  however,  to  meet  these  obli- 
gations, were  to  be  raised  by  their  own  legislatures. 

Out  of  this  vast  territory  not  less  than  three,  nor  more  than  five  States 
were  to  be  created,  endowed  with  the  right  to  form  a  permanent  Constitu- 
tion and  state  government  whenever  there  were  sixty  thousand  free  inhabit- 
ants in  any  one  thereof,  and  to  be  thereupon  admitted  into  the  Union  upon 
an  equality  with  the  original  States,  "  provided  the  constitution  and  govern- 
ment so  to  be  formed,  shall  be  republican,  and  in  conformity  to  the  principles 
contained  in  these  articles."  Indeed,  they  were  to  be  admitted  before  they 
had  sixty  thousand  inhabitants  if  this  could  conveniently  be  done. 

And  in  every  foot  of  this  vast  domain,  it  was  specifically  provided  in  the 
language  of  Article  6,  to  be  later  incorporated  in  the  thirteenth  amendment 
to  the  Constitution  of  the  United  States,  that :  "  There  shall  be  neither 
slavery  nor  involuntary  servitude  in  the  said  territory,  otherwise  than  in  the 
punishment  of  crimes,  whereof  the  party  shall  have  been  duly  convicted." 

Here  we  have  the  Congress  sitting  during  the  Federal  Convention,  giv- 
ing its  approval  to  the  threefold  distribution  of  power,  providing  for  the 
government  of  a  vast  domain  which  should  be  broken  up  into  territories  and 
in  the  course  of  time  admitted  as  States  of  the  Union,  specifying  the  funda- 
mentals not  merely  of  law  and  of  order,  but  the  principles  which  should 


290  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

enter  into  a  bill  of  rights  for  the  protection  against  the  central  government 
of  the  inhabitants  of  the  district  or  districts  into  which  the  territory  should 
be  divided,  and  expressed  in  the  form  of  a  compact  between  the  thirteen 
original  States,  whose  representative  the  Congress  was,  with  the  peoples  and 
political  subdivisions  of  the  Northwest  Territory.  The  ordinance  not  only 
throws  light  upon  the  proceedings  of  the  Federal  Convention  and  upon  the 
mental  attitude  of  its  members;  it  is  the  light,  and  it  is  the  mental  attitude. 

The  Constitution  was  devised  primarily  for  the  thirteen  confederated 
States  of  America  by  official  representatives  of  twelve  of  them.  However, 
the  statesmen  who  sat  in  the  Federal  Convention  contemplated  a  Union  com- 
posed of  a  larger  number  of  States,  for  the  Congress  of  the  Confederation 
had,  as  has  been  said,  pledged  the  faith  of  the  United  States  to  create  States 
within  the  northwestern  territory.  Movements  were  elsewhere  on  foot, 
and  indeed  far  advanced,  to  create  States  in  the  outlying  portions  of  Vir- 
ginia and  of  North  Carolina  which  shortly  resulted  in  the  creation  and  admis- 
sion to  the  Union  of  the  States  of  Kentucky  and  Tennessee. 

The  good  people  of  Vermont  declined  to  be  citizens  of  Massachusetts, 
of  New  Hampshire,  of  New  York,  although  the  latter  two  States  were 
importunate.  Vermont,  however,  stood  to  its  guns  in  the  literal  sense  of 
that  term,  resisting  persuasion  and  refusing  to  yield  to  force.  It  considered 
itself  to  be  a  separate  and  distinct  State,  organized  itself  as  such,  provided 
a  Constitution  under  which  it  governed  itself,  feeling  itself  to  be  an  Ameri- 
can State  as  free,  as  sovereign,  and  as  independent  as  those  of  the  Confed- 
eration of  which  it  was  not  a  member;  ready  and  willing,  however,  to  asso- 
ciate itself  with  them  in  the  more  perfect  Union. 

The  Constitution  would  therefore  have  to  provide  for  such  contingencies, 
as  questions  of  this  kind  were  bound  to  arise  and  be  decided  in  Convention. 
No  plan  could  emanate  from  the  Virginian  delegation  that  did  not  contem- 
plate it,  because  the  cession  of  the  claims  of  Virginia  to  the  Northwestern 
Territory  was  conditioned  upon  the  creation  of  States  within  that  vast 
domain  extending  from  the  north  of  the  Ohio  to  the  Mississippi  River. 
Indeed,  the  State  of  Kentucky  was  already  taking  form  and  shape  within 
the  territorial  limits  of  Virginia.  Therefore  the  tenth  and  in  a  less  degree 
the  eleventh  of  Mr.  Randolph's  resolutions  dealt  with  this  question.  The 
tenth  recommended  that  "  provision  ought  to  be  made  for  the  admission  of 
States  lawfully  arising  within  the  limits  of  the  United  States,  whether  from 
a  voluntary  junction  of  Government  &  Territory  or  otherwise,  with  the  con- 
sent of  a  number  of  voices  in  the  National  Legislature  less  than  the  whole."  x 
The  eleventh  resolution  provided  that  "  a  Republican  Government  &  the 
territory  of  each  State,  except  in  the  instance  of  a  voluntary  junction  of 

1  Documentary  History  of  the  Constitution,  Vol.  Ill,  p.  19.     Session  of  May  29th. 


THE   ADMISSION   OF   NEW   STATES  291 

Government  &  territory,  ought  to  be  guaranteed  by  the  United  States  to 
each  State."  Mr.  Patterson's  plan  proposed,  on  behalf  of  the  small  States 
preferring  a  revision  of  the  Articles  of  Confederation  rather  than  a  new 
scheme  of  government  without  reference  to  them,  that  "  provision  be  made 
for  the  admission  of  new  States  into  the  Union."  1 

A  feature  thus  appearing  in  the  plans  of  the  large  and  of  the  small 
States  was  one  of  general  import  which  would  require  and  receive  settle- 
ment. In  this  matter  the  erstwhile  colonies  found  themselves  confronted 
with  the  problem  that  had  faced  the  mother  country  in  its  relation  with  the 
colonies.     And  it  must  be  said  that  some  men  of  the  laree  States  looked  at  Attitude 

°  of  Large 

it  rather  from  the  standpoint  of  the  imperialists  on  the  other  side  of  the  States 
water  than  as  statesmen  of  the  new  world  recognizing  the  equal  rights  of 
the  parts  of  Empire  as  well  as  the  rights  of  the  Empire  itself.  The  advo- 
cates of  this  school  apparently  wished  to  center  all  power  in  the  Atlantic 
States  and  to  place  the  new  States  not  merely  in  an  inferior  position,  but 
also  to  maintain  them  in  continual  tutelage.  This  attitude  was  perhaps  most 
frankly  and  brutally  expressed  by  Gouverneur  Morris,  a  delegate  from  the 
large  State  of  Pennsylvania.  There  were,  however,  notable  exceptions  to 
be  found  among  the  delegates  of  the  larger  States,  especially  George  Mason 
and  James  Madison  of  Virginia,  who  were  as  outspoken  in  their  views  of 
the  equality  of  western  States  as  Gouverneur  Morris  was  against  it. 

If  the  western  boundaries  of  each  of  the  existing  States  had  been  clear, 
definite  and  fixed,  the  question  might  have  been  as  to  whether  the  territory 
to  the  west  of  their  boundaries  was  to  be  acquired  by  the  Union  or  appor- 
tioned among  the  individual  States  as  such.  In  the  latter  case,  even  if  it 
had  been  possible,  there  would  have  been  difficulty  in  allotting  the  territory 
to  be  obtained  by  each,  as  in  the  instance  of  a  State  situated  as  Rhode 
Island,  cut  off  from  all  access  to  the  west  except  through  the  territory  of  its 
neighbors.  The  question  was  complicated  by  the  fact  that  only  the  western 
boundaries  of  New  Hampshire,  Rhode  Island,  New  Jersey,  Pennsylvania, 
Delaware  and  Maryland  were  definite,  using  that  term  in  a  generous  sense, 
whereas  the  remaining  States  of  Massachusetts,  Connecticut,  New  York, 
Virginia,  North  Carolina,  South  Carolina  and  Georgia  claimed  by  charter 
or  irrespective  of  charter  to  extend  indefinitely  to  the  west." 

1  Documentary  History  of  the  Constitution,  Vol.  iii,  p.  128.     Session  of  June  15th. 

2  The  situation  obtaining  at  this  time  is  thus  described  in  American  History  Leaflets,  No. 
22,  "Documents  Illustrating  State  Land  Claims  and  Cessions,  1776-1802,"  ed.  by  Albert 
Bushnell  Hart  and  Edward  Channing,  pp.  1-2: 

"  When  the  Revolution  was  impending,  the  boundaries  between  colonies  had  been  for 
the  most  part  adjusted;  and  by  the  Proclamation  of  1763  no  governors  were  to  'grant 
warrants  of  survey  or  pass  patents  for  any  lands  beyond  the  heads  or  sources  of  any  of  the 
rivers  which  fall  into  the  Atlantic  Ocean  from  the  west  or  northwest ;  or  upon  any  lands 
whatever,  which,  not  having  been  ceded  to  or  purchased  by  us,  as  aforesaid,  are  reserved 
to  the  said  Indians  or  any  of  them.' 


292  THE  UNITED  STATES:  A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

The  view  of  Maryland,  concurred  in  by  the  States  making  no  claim  to 
the  western  territory,  was  that  it  ought  "  to  be  considered  as  a  common 
property  subject  to  be  parcelled  out  by  Congress  into  free,  convenient  and 
independent  governments,"  inasmuch  as  it  consisted  of  territory  ceded  by 
the  treaty  of  Paris  of  1763  to  the  British  Crown  and  conquered  from  the 
mother  country  by  the  united  efforts  of  the  thirteen  colonies.  Maryland  felt 
so  strongly  on  this  point  that  it  refused  to  enter  the  Confederation  unless 
and  until  the  western  domain  was  secured  for  the  common  benefit. 

Against  this  action  of  its  neighbor,  Virginia  protested,  since  it  claimed 
not  only  the  territory  to  the  South  of  the  Ohio,  from  which  the  State  of 
Kentucky  was  carved,  but  also  the  territory  to  the  northwest  of  the  Ohio 
extending  to  the  Mississippi  River.  The  first  step  toward  a  compromise  was 
taken  by  the  State  of  New  York,  which,  on  February  19,  1780,  empowered 
its  delegates  to  concede  for  the  common  benefit  a  portion  of  the  territory  to 
which  it  laid  claim.1  On  September  6th  of  the  same  year  the  Congress, 
encouraged  by  this  action  on  the  part  of  New  York,  advised  the  States  to 
surrender  a  portion  of  their  claims  to  the  territory  in  question,  inasmuch  as 
without  such  action  the  Union  under  the  Articles  of  Confederation  essential 
"  to  our  very  existence  as  a  free,  sovereign  and  independent  people  "  could 
not  be  established;  and  the  States  could  not  hope  to  preserve  their  claims, 
as  to  do  so  would  endanger  the  Confederation,  with  the  consequence  that 
they  would  lose  credit  and  confidence  at  home  and  prestige  and  reputation 
abroad. 

On  the  10th  of  October  the  Congress  took  a  final  step,2  in  as  far  as  any 

"  The  Resolution  brought  about  several  important  changes  in  the  territorial  conditions 
of  the  former  colonies.  As  soon  as  the  English  authority  was  extinguished,  the  States 
which  had  once  had  charters  asserted  that  the  territory  embraced  by  such  charters  reverted 
to  them.  In  the  second  place,  the  restriction  to  land  east  of  the  Appalachian  water-shed 
and  outside  Indian  tracts  was  held  to  have  no  more  force.  In  the  third  place,  several 
communities,  notably  Vermont,  asserted  that  they  were  no  longer  included  within  the  State 
of  which  they  had  been  a  part  while  it  was  still  a  colony.  And  in  1778  Virginia  troops 
conquered  the  Northwest  region,  then  a  part  of  the  English  Province  of  Quebec.  The 
result  was  confusion  and  clashing  of  interests.  Western  New  York  and  Northern  Penn- 
sylvania were  claimed  by  Massachusetts  and  Connecticut  respectively;  New  York,  Massa- 
chusetts and  Connecticut,  and  Virginia  all  claimed  the  same  parcel  of  territory  north  of 
the  Ohio  River;  and  the  States  with  strictly  defined  boundaries,  especially  Maryland, 
protested  against  the  appropriation  by  individual  States  of  lands  gained  by  the  common 
effort  of  the  Revolutionary  War. 

"The  controversy  delayed  the  ratification  of  the  Articles  of  Confederation  and  was 
finally  adjusted  by  a  series  of  agreements  between  the  competing  States,  and  a  series  of 
cessions  to  the  Union,  not  completed  until  1802." 

1  This  deed  of  cession  was  authorized  by  Congress  March  1,  1781.  Journals  of  the 
Continental  Congress,  Vol.  xix,  pp.  211-13. 

2  The  pledge  of  Congress  took  the  following  form  : 

Resolved,  That  the  unappropriated  lands  that  may  be  ceded  or  relinquished  to  the 
United  States,  by  any  particular  states,  pursuant  to  the  recommendation  of  Congress  of  the 
6  day  of  September  last,  shall  be  disposed  of  for  the  common  benefit  of  the  United  States 
and  be  settled  and  formed  into  distinct  republican  states,  which  shall  become  members  of 
the  federal  union,  and  have  the  same  rights  of  sovereignty,  freedom  and  independence, 
as  the   other   states :   that   each   state   which   shall   be   so    formed   shall   contain   a   suitable 


THE  ADMISSION   OF    NEW    STATES  293 

measure  taken  by  it  could  be  final,  resolving  that  the  lands  to  which  the 
States  should  cede  their  claims  should  be  formed  into  republican  States  upon 
a  footing  of  equality  with  those  forming  the  Union  which,  by  the  second 
of  the  Articles  of  Confederation,  was  declared  to  be  free,  sovereign  and 
independent. 

The  question  had  now  become  largely  one  between  Virginia  and  Mary-  Virginia 
land.  "  Preferring  the  good  of  the  country  to  every  object  of  smaller  cilimquis 
importance,"  the  State  of  Virginia  sacrificed  whatever  claim  it  may  have 
had  to  the  west  and  the  northwest  by  offering  to  cede  it  to  the  Union,  thus 
removing  from  Maryland  all  ground  for  further  delay  in  acceding  to  the 
Confederation.  Yielding  to  the  pressure  of  the  States  and  to  the  desire  of 
France  that  the  Union  be  consummated  in  the  interest  of  the  common  cause, 
the  State  of  Maryland  authorized,  on  February  2,  1781,  its  delegates  to 
ratify  the  Articles.  This  was  done  on  March  1,  1781.  Pursuant  to  the 
agreement,  Virginia  authorized,  by  an  act  of  December  20,  1783, 1  its  dele- 
gates to  execute  a  deed  of  cession  to  the  territory  in  question  to  the  United 
States,  which  was  done  on  March  1,  1784,  and  on  April  23d  of  the  same 
year  the  Congress  provided  a  temporary  government  for  the  ceded  territory.2 

It  was  evident  that  the  United  States  in  Congress  assembled  had  earnestly 
sought  to  quiet  title  to  the  western  territory,  in  order  to  open  it  to  settlers 
upon  what  then  was  and  now  must  be  called  equitable  terms.  The  delegates 
of  the  States  had  pledged  the  Confederation  to  the  admission  of  tracts  to  the 
west  as  States  upon  a  footing  of  equality  when  the  time  should  come  for 
such  action.  The  members  of  the  Federal  Convention  who  in  some  instances 
were,  as  has  been  stated,  members  of  the  very  Congress  which  proposed  the 
Northwest  Ordinance  during  the  sessions  of  the  Convention,  appeared  to 
have  taken  it  as  a  matter  of  course  that  the  territory  west  of  the  mountains 
would  be  carved  into  States  and  admitted  to  the  more  perfect  Union  upon 
terms  of  equality.  Therefore  Article  XVII  of  the  first  draft  of  the  Con- 
stitution, reported  on  August  6,  1787,  provided  that  new  States  should  be 
admitted  on  the  same  terms  with  the  original  States.  Mr.  Gouverneur 
Morris  moved  to  strike  out  this  clause,  saying  that  "  he  did  not  wish  to  bind 
down  the  Legislature  to  admit  Western  States  on  the  terms  here  stated  .   .   . 

extent  of  territory,  not  less  than  one  hundred  nor  more  than  one  hundred  and  fifty  miles 
square,  or  as  near  thereto  as  circumstances  will  admit: 

That  the  necessary  and  reasonable  expences  which  any  particular  state  shall  have  in- 
curred since  the  commencement  of  the  present  war,  in  subduing  any  of  the  British  posts,  or 
in  maintaining  forts  or  garrisons  within  and  for  the  defence,  or  in  acquiring  any  part  of 
the  territory  that  may  be  ceded  or  relinquished  to  the  United  States,  shall  be  reimbursed; 

That  the  said  lands  shall  be  granted  and  settled  at  such  times  and  under  such  regula- 
tions as  shall  hereafter  be  agreed  on  by  the  United  States  in  Congress  assembled,  or  any 
nine  or  more  of  them.    Journals  of  the  Continental  Congress,  Vol.  XVIII,  p.  915. 

1  See  American  History  Leaflets,  No.  22,  pp.  12-15. 

'Journals  of  the  American  Congress,  Vol.  IV,  pp.  379-80. 


294  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL    ORGANIZATION 

™  ^.fJaiity  He  did  not  wish  however  to  throw  the  power  into  their  hands."  *    Mr.  Madi- 

with  5id  son  0pp0Sed  this  motion,  "  insisting  that  the  Western  States  neither  would 

nor  ought  to  submit  to  a  union  which  degraded  them  from  an  equal  rank 
with  the  other  States."  Mr.  Mason  followed  him,  saying,  "If  it  were  pos- 
sible by  just  means  to  prevent  emigrations  to  the  Western  Country,  it  might 
be  good  policy.  But  go  the  people  will  as  they  find  it  for  their  interest,  and 
the  best  policy  is  to  treat  them  with  that  equality  which  will  make  them 
friends  not  enemies."  But  Roger  Sherman  of  Connecticut  had  already  put 
the  matter  on  unassailable  grounds,  saying  that  he  "  thought  there  was  no 
probability  that  the  number  of  future  States  would  exceed  that  of  the  Exist- 
ing States.  If  the  event  should  ever  happen,  it  was  too  remote  to  be  taken 
into  consideration  at  this  time.  Besides  We  are  providing  for  our  posterity, 
for  our  children  &  our  grand  Children  who  would  be  as  likely  to  be  citizens 
of  new  Western  States,  as  of  the  old  States.  On  this  consideration  alone, 
we  ought  to  make  no  such  discrimination  as  was  proposed  by  the  motion."  2 
Because  of  the  opposition  of  men  of  the  school  of  Gouverneur  Morris, 
the  principle  of  equality  was  not  consecrated  in  the  Constitution,  but  as 
equality  is  the  very  life  and  breath  of  American  institutions  it  has  obtained 
in  practice,  and  each  new  State  is  admitted  to  the  Union  upon  a  footing  of 
equality.  For,  as  stated  by  Mr.  Justice  Lurton  in  delivering  the  opinion  of 
the  Supreme  Court  in  the  case  of  Coyle  v.  Smith  (221  U.  S.,  559,  580), 
decided  in  1911 : 

The  constitutional  equality  of  the  States  is  essential  to  the  harmonious 
operation  of  the  scheme  upon  which  the  Republic  was  organized.  When  that 
equality  disappears  we  may  remain  a  free  people,  but  the  Union  will  not  be 
the  Union  of  the  Constitution.3 

The  rights  of  the  existing  States,  however,  were  safeguarded  against 
partition  or  involuntary  union  with  other  States,  which  provisions  inured  to 
the  benefit  of  all  States.  They  are  thus  expressed  in  the  third  section  of 
Article  IV  of  the  perfected  Constitution : 

No  new  State  shall  be  formed  or  erected  within  the  Jurisdiction  of  any 
other  State ;  nor  any  State  be  formed  by  the  Junction  of  two  or  more  States 
or  Parts  of  States,  without  the  Consent  of  the  Legislatures  of  the  States 
concerned  as  well  as  of  the  Congress. 

It  will  be  observed  that  the  consent  of  Congress  is  required  even  when 
the  States  themselves  might  be  willing,  inasmuch  as  the  question  is  one  con- 
cerning the  Union  as  a  whole  as  well  as  of  the  States  thought  to  be  more 
closely  involved. 

1  Documentary  History,  Vol.  iii,  pp.  642-3.     Session  of  August  29th. 

'Ibid.,  pp.  332-3.    Session  of  July  14th. 

*  J.  B.  Scott,  Judicial  Settlement  of  Controversies  between  States,  Vol.  i,  p.  64. 


THE    ADMISSION    OF    NEW    STATES 


295 


A.  further  passage  of  this  section  may  be  quoted  as  showing  how  easily 
despotism  in  others  is  the  exercise  of  just  rights  in  ourselves,  for  in  the  next 
succeeding  clause  it  is  provided  that  "  the  Congress  shall  have  Power  to  dis- 
pose of  and  make  all  needful  Rules  and  Regulations  respecting  the  Territory  ^vtehr"ment 
or  other  Property  belonging  to  the  United  States."  And  this  clause  has  Territories 
been  interpreted  by  the  Supreme  Court  to  vest  in  the  Congress,  as  to  it  shall 
seem  expedient,  the  unquestioned  and  indeed  unquestionable  right  to  govern 
the  territories  of  the  United  States  until  their  admission  to  the  Union.  As 
a  matter  of  fact  Congress  has  exercised  this  power  in  such  a  way  that  the 
governors  of  the  territories,  the  judges  of  their  courts  created  by  act  of 
Congress,  are  appointed  by  the  President  by  and  with  the  consent  of  the 
Senate,  and  that  the  acts  of  their  legislatures,  created  by  the  Congress  and 
invested  with  such  powers  as  the  Congress  deems  advisable,  may  be  set 
aside  by  the  Congress  of  the  United  States.  A  delegate  from  each  territory, 
elected  by  the  qualified  voters  thereof,  does  indeed  sit  in  the  House  of  Repre- 
sentatives, but  he  may  not  vote  although  he  may  participate  in  debate. 

As  pronounced  a  friend  and  advocate  of  the  more  perfect  Union  under 
the  Constitution  as  Chancellor  Kent  feared  that  the  evils  of  the  old  system 
would  reappear  in  the  new,  saying  in  his  Commentaries  on  American  Law, 
first  published  in  1826: 

If,  therefore,  the  government  of  the  United  States  should  carry  into 
execution  the  project  of  colonizing  the  great  valley  of  the  Oregan  to  the  west 
of  the  Rocky  Mountains,  it  would  afford  a  subject  of  grave  consideration 
what  would  be  the  future  civil  and  political  destiny  of  that  country.  It 
would  be  a  long  time  before  it  would  be  populous  enough  to  be  created  into 
one  or  more  independent  states;  and,  in  the  meantime,  upon  the  doctrine 
taught  by  the  acts  of  congress,  and  even  by  the  judicial  decisions  of  the 
Supreme  Court,  the  colonists  would  be  in  a  state  of  the  most  complete  sub- 
ordination, and  as  dependent  upon  the  will  of  congress  as  the  people  of  this 
country  would  have  been  upon  the  king  and  parliament  of  Great  Britain,  if 
they  could  have  sustained  their  claim  to  bind  us  in  all  cases  whatsoever. 
Such  a  state  of  absolute  sovereignty  on  the  one  hand,  and  of  absolute  de- 
pendence on  the  other,  is  not  at  all  congenial  with  the  free  and  independent 
spirit  of  our  native  institutions ;  and  the  establishment  of  distant  territorial 
governments,  ruled  according  to  will  and  pleasure,  would  have  a  very  natural 
tendency,  as  all  proconsular  governments  have  had,  to  abuse  and  oppression.1 

But  the  Congress  has  exercised  its  powers  in  wisdom,  and  the  territories 
have  been  rapidly,  indeed  some  think  too  rapidly,  admitted  to  statehood.  In 
Milton's  conception,  Presbyterian  might  indeed  be  "  old  priest  writ  large," 
but  the  Congress  of  the  United  States  is  not  another  form  or  name  for  that 
imperious  Parliament  whose  powers  it  exercises  in  the  New  World. 

1  James  Kent,  Commentaries,  1826,  Vol.  I,  pp.  360-1. 


XV 
AMENDMENTS  AND  RATIFICATIONS 

It  must  be  recollected  that  the  Constitution  was  proposed  to  the  people  of  the  States 
as  a  whole,  and  unanimously  adopted  as  a  whole,  it  being  a  part  of  the  Constitution  that 
not  less  than  J4  should  be  competent  to  make  any  alteration  in  what  had  been  unanimously 
agreed  to.  So  great  is  the  caution  on  this  point,  that  in  two  cases  where  peculiar  interests 
were  at  stake  a  majority  even  of  J4  are  distrusted  and  a  unanimity  required  to  make 
any  change  affecting  those  cases. 

When  the  Constitution  was  adopted  as  a  whole,  it  is  certain  that  there  are  many  of 
its  parts  which  if  proposed  by  themselves  would  have  been  promptly  rejected.  It  is  far 
from  impossible  that  every  part  of  a  whole  would  be  rejected  by  a  majority  and  yet  the 
whole  be  unanimously  accepted.  Constitutions  will  rarely,  probably  never  be  formed 
without  mutual  concessions,  without  articles  conditioned  on  &  balancing  each  other.  Is 
there  a  Constitution  of  a  single  State  out  of  the  24  that  would  bear  the  experiment  of 
having  its  component  parts  submitted  to  the  people  separately,  and  decided  on  according 
to  their  insulated  merits.  (Extract  from  letter  of  James  Madison  to  Robert  Y.  Hayne, 
United  States  Senator  from  South  Carolina,  dated  April  3/4,  1830,  Gaillard  Hunt,  Editor, 
The  Writings  of  James  Madison.  Vol.  IX.  1910.  p.  392,  note.) 

But  it  is  universally  understood,  it  is  a  part  of  the  history  of  the  day,  that  the  great 
revolution  which  established  the  constitution  of  the  United  States,  was  not  effected 
without  immense  opposition.  Serious  fears  were  extensively  entertained,  that  those  powers 
which  the  patriot  statesmen,  who  then  watched  over  the  interests  of  our  country,  deemed 
essential  to  union,  and  to  the  attainment  of  those  invaluable  objects  for  which  union  was 
sought,  might  be  exercised  in  a  manner  dangerous  to  liberty.  In  almost  every  convention 
by  which  the  constitution  was  adopted,  amendments  to  guard  against  the  abuse  of  power 
were  recommended.  These  amendments  demanded  security  against  the  apprehended 
encroachments  of  the  general  government — not  against  those  of  the  local  governments. 
In  compliance  with  a  sentiment  thus  generally  expressed,  to  quiet  fears  thus  extensively 
entertained,  amendments  were  proposed  by  the  required  majority  in  congress,  and  adopted 
by  the  states.  These  amendments  contain  no  expression  indicating  an  intention  to  apply 
them  to  the  state  governments.  This  court  cannot  so  apply  them.  (Chief  Justice  Marshall 
in  Barron  v.  The  Mayor  and  City  of  Baltimore.  7  Peters,  243.  250.  decided  in  1S33.) 

The  prohibition  alluded  to  as  contained  in  the  amendments  to  the  constitution,  as 
well  as  others  with  which  it  is  associated  in  those  articles,  were  not  designed  as  limits 
upon  the  State  governments  in  reference  to  their  own  citizens.  They  are  exclusively  restric- 
tions upon  federal  power,  intended  to  prevent  interference  with  the  rights  of  the  States, 
and  of  their  citizens  Such  has  been  the  interpretation  given  to  those  amendments  by 
this  court,  in  the  case  of  Barron  v.  The  Mayor  and  City  Council  of  Baltimore,  7  Pet.,  243; 
and  such  indeed  is  the  only  rational  and  intelligible  interpretation  which  those  amendments 
can  bear,  since  it  is  neither  probable  nor  credible  that  the  States  should  have  anxiously 
insisted  to  ingraft  upon  the  federal  constitution  restrictions  upon  their  own  authority, — 
restrictions  which  some  of  the  States  regarded  as  the  sine  qua  non  of  its  adoption  by  them. 
(Mr.  Justice  Daniel  in  Fox  v.  The  State  of  Ohio,  5  Howard,  410,  434-435,  decided  in  1847.) 

"  This  term  United  States,  designates  the  whole  American  empire."  It  is  the  name 
given  to  our  great  republic,  composed  of  states  and  territories;  5  Wh.  514;  "con- 
stituent parts  of  one  great  empire:"  6  Wh.  414;  "who  have  formed  a  confederated 
government ;  "  12  Wh.  334 ;  2  Pet.  590,  1 ;  by  the  act  of  the  people  of  the  "  great  empire," 
the  "great  republic,"  the  "American  empire,"  the  United  States.  "The  people  of 
America,"  "the  American  people,"  "the  people  of  the  United  States,"  are  but  terms  and 
names,  to  designate  the  grantor  of  the  thing,  which  was  thus  formed,  by  the  people,  of 
the  constituent  parts;  the  thing,  the  poiccr  which  formed  it,  by  a  thing,  this  constitution, 
established  by  the  ratifications  of  nine  things,  conventions  of  nine  states,  by  the  people 

296 


AMENDMENTS   AND    RATIFICATIONS  297 

of  each  as  a  state.     (Mr.  Justice  Baldwin,  A  General  View  of  the  Origin  and  Nature  of 
the  Constitution  and  Government  of  the  United  States,  1837,  p.  14.) 

Twelve  states  met  in  convention  by  their  separate  delegations,  to  digest,  reduce  to 
form,  and  submit  to  a  congress  of  the  states,  a  frame  of  government  for  such  of  the 
states,  as  should,  in  conventions  of  the  state,  ratify  it  as  their  act:  the  frame  was  made, 
it  proposed  the  institution  of  a  government  between  the  states  who  should  adopt  it,  nine 
of  whom  were  declared  competent.  These  separate  conventions  were  not  to  be  like  the 
general  convention,  composed  of  members  appointed  by  state  legislatures,  with  power 
only  to  propose  an  act  to  them  as  their  constituents,  and  through  them  to  the  people  of 
the  state.  To  the  proposed  act  was  prefaced  a  declaration,  that  it  was  to  be  the  act  of 
the  people,  and  a  constitution  for  a  government,  such  as  it  delineated.  So  it  was  sub- 
mitted to  Congress,  and  by  them  to  each  state  legislature,  who  called  conventions  of 
delegates  elected  by  the  people  of  each  stale;  nine  of  these  conventions  separately  ratified  the 
act,  in  the  name  of  the  people  who  had  authorized  it;  and  thus  the  proposed  frame  of 
government  was  established  as  a  constitution  for  those  nine  states,  who  then  composed 
"The  United  States  of  America;"  and  between  themselves  only.  The  declaration,  in  its 
front,  therefore,  necessarily  refers,  not  to  the  time  when  it  was  proposed,  but  when  it  was 
ordained  and  established,  by  "  the  ratification  of  the  conventions  of  nine  states,"  as  this 
was  done  by  the  people  of  those  states;  so  the  act  declares,  "  We  the  people  of  the  United 
States,  (which  have  ratified)  do  ordain  (by  our  separate  ratifications)  this  constitution," 
for  (the  states,  and  between  the  states  so  ratifying  the  same,  who  are  thereby)  "The 
United  States  of  America."  {Mr.  Justice  Baldwin,  A  General  View  of  the  Origin  and 
Nature  of  the  Constitution  and  Government  of  the  United  States,  1837,  p.  18.) 

There  never  has  been,  or  can  be  any  difference  of  opinion  as  to  the  meaning  of  the 
ordaining  parts  of  the  constitution  in  the  terms,  "  the  people  of  the  several  states;  "  "  the 
several  states  which  may  be  included  in  this  union;  "  "each  state;"  for  they  do  not  admit 
of  two  meanings.  They  refer  to  those  states  which,  having  ratified  the  constitution,  are 
each  a  constituent  part  of  the  United  States,  composing,  by  their  union,  the  United  States 
of  America;  and  to  the  people  of  each  state,  as  the  people  of  these  United  States.  When 
terms  are  so  definite  in  the  body  of  an  instrument,  and  one  less  definite  is  used  in  the 
preamble,  which  can  be  made  equally  definite  by  reference,  the  established  maxim  applies — 
"  id  certum  est  quod  cerium  reddi  potest."  (Mr.  Justice  Baldwin,  A  General  View 
of  the  Origin  and  Nature  of  the  Constitution  and  Government  of  the  United  States,  1837, 
p.  30.) 

I  have  only  to  add  one  other  consideration,  to  illustrate  the  meaning  of  the  preamble. 
All  agree  that  the  constitution  was  to  be  established  by  the  people  of  the  United  States, 
whenever  the  conventions  of  nine  states  should  ratify  it;  all  must  agree,  that  when  it  was 
proposed  for  adoption  in  1787,  it  could  not  be  foreseen  which  of  the  states  would  so  ratify 
it;  the  states  therefore  could  not  be  named  till  their  separate  ratifications  were  given.  It 
provided  for  the  admission  of  new  states,  but  no  one  could  divine  their  names  or  locality; 
states  could  be  "  formed  by  the  junction  of  two  or  more  states,"  but  none  could  say  of 
which.  The  constitution  was  intended  for  posterity,  through  all  time;  and  for  "the  land," 
the  whole  territory,  and  all  the  states,  old  and  new;  as  one  law,  speaking  in  the  same 
words,  and  with  the  same  intention,  at  the  time  it  was  proposed,  and  at  each  period  when 
any  state  ratified  it.  and  thus  became  one  of  "the  United  States  of  America,"  by  the  act 
of  the  people  of  the  states  respectively. 

When  the  terms  "we,  the  people,"  "of  the  United  States,"  are  thus  applied,  they  seem 
to  me  not  only  appropriate  to  the  instrument,  but  the  only  terms  that  would  be  so;  it 
uses  terms  in  all  its  parts,  yet  we  find  no  definitions  or  explanations;  it  was  not  intended 
for  a  code;  and  the  term  "people,"  was  a  mere  designation  of  the  power  by  which  the 
constitution  was  made,  as  "  the  states "  were  designated  by  their  separate  ratifications. 
Hence  it  referred,  in  1789,  to  eleven  only,  then  to  the  old  thirteen  states,  and  now  refers 
to  the  thirteen  new  states:  and  when  others  shall  be  admitted  into  the  Union,  it  will  refer 
to  them  as  it  did  to  the  old,  and  now  does  to  the  new.  "The  people"  "of  the  several 
states,  which  may  be  included  within  this  Union,"  as  the  constituent  power  of  the  federal 
government.  (Mr.  Justice  Baldwin,  A  General  View  of  the  Origin  and  Nature  of  the 
Constitution  and  Government  of  the  United  States,  1837,  p.  97.) 

Each  state  still  has  two  constitutions  of  government,  one  for  state,  the  other  for  federal 
purposes;  both  ordained  by  the  same  people,  and  in  the  same  manner,  in  a  convention  of 
their  representatives,  elected  by  the  electors  of  the  states,  for  the  special  object,  whereby  in 
the    simple,    impressive,    instructive,    and    strictly    constitutional    language    of    this    Court, 


298  THE  UNITED  STATES:  A  STUDY  IN   INTERNATIONAL  ORGANIZATION 

"  The  national  and  state  systems  are  to  be  regarded  as  one  whole."  6  Wh.  419.  "  The 
powers  of  government  are  divided  between  the  government  of  the  Union,  and  those  of 
the  states."  "They  are  each  sovereign,  with  respect  to  the  objects  committed  to  it;  and 
neither  sovereign,  with  respect  to  the  objects  committed  to  the  other."  4  Wh.  410  (Mr. 
Justice  Baldwin,  A  General  View  of  the  Origin  and  Nature  of  the  Constitution  and 
Government  of  the  United  States,  1837,  p.  9/.) 

Art.  7.  "The  ratifications  of  the  conventions  of  nine  states  shall  be  sufficient  for  the 
establishment  of  this  constitution,  between  the  states  so  ratifying  the  same." 

It  is  then,  by  the  separate  action  of  the  states,  in  conventions  of  nine  states,  (not  of 
a  convention  of  nine  states)  that  the  grant  was  made;  the  act  of  eight  produced  no  result; 
but  when  the  ninth  acted,  the  great  work  was  effected  as  between  the  nine.  Until  the 
other  four  so  acted,  they  were  no  part  of  the  United  States ;  nor  were  the  people  of  the 
non-ratifying  states,  any  part  of  the  people  of  the  United  States,  who  ordained  and 
established  it. 

That  the  term,  conventions  of  states,  meant  conventions  of  delegates,  elected  by  the 
people  of  the  several  states,  for  the  express  purpose  of  assenting  or  dissenting,  to  their 
adoption  of  the  proposed  constitution,  is  admitted  by  all ;  as  also,  that  no  general  con- 
vention of  the  whole  people  was  ever  convened  for  any  purpose:  and  that  the  members 
of  the  convention  which  framed  it,  met,  and  acted  as  states,  consented  to,  and  signed  it 
for  and  in  behalf  of  the  states,  whom  they  respectively  represented,  appears  on  its  face. 
It  was  proposed  to  the  people  of  each  state  separately,  and  was  so  ratified ;  it  existed 
only  between  those  states,  whose  people  had  so  accepted  it.  It  would,  therefore,  most 
strangely  contradict  itself,  throughout  all  its  provisions,  to  so  construe  the  preamble,  as  to 
make  it  a  declaration,  that  it  was  ordained  by  any  other  power  than  that  of  the  people 
of  the  several  states,  as  distinct  bodies  politic,  over  whom  no  external  power  could  be 
exerted,  but  by  their  own  consent 

These  are  not  only  the  necessary  conclusions,  which  flow  from  the  plain  language  and 
definite  provisions  of  the  constitution  itself,  but  their  settled  interpretation  by  this  Court. 
"  From  these  conventions  the  constitution  derives  its  whole  authority.  The  government 
proceeds  directly  from  the  people,  and  is  ordained  and  established  in  the  name  of  the 
people."    4  Wh.  403. 

If  it  is  asked  what  people;  the  answer  is  at  hand.  "A  convention  of  delegates  chosen 
ui  each  state,  by  the  people  thereof,  assembled  in  their  several  states."  lb.  sup.  (Mr. 
Justice  Baldwin,  A  General  View  of  the  Origin  and  Nature  of  the  Constitution  and  Gov- 
ernment of  the  United  States,  1837,  p.  35.) 


CHAPTER  XV 

AMENDMENTS   AND   RATIFICATIONS 

The  members  of  the  Convention  were  too  wise  not  to  foresee  that,  how- 
ever perfect  they  might  themselves  consider  their  work,  it  would  suffer 
revision  at  other  hands.  They  were  indeed  ostensibly  engaged  in  revising 
one  instrument  of  government,  and  while  attempting  to  correct  the  obvious 
defects  in  the  Articles  of  Confederation  which  experience  had  disclosed,  they 
could  not,  nor  did  they  attempt,  to  forecast  events  in  such  a  way  as  to  exclude 
the  possibility  of  change  in  the  fundamental  charter  of  the  Union.  They 
wisely  left  the  future  to  "  posterity."  Indeed  they  were  so  convinced  of 
the  necessity  of  revision  that  they  facilitated  it  by  rejecting  the  require- 
ment that  it  could  only  be  brought  about  by  the  unanimous  consent  of  the 
States. 

The  thirteenth  of  Mr.  Randolph's  resolutions  stated  that  "  provision  ought  P«>vi- 

*  r  o  Bions  for 

to  be  made  for  the  amendment  of  the  Articles  of  Union  whensoever  it  shall  Amendment 
seem  necessary,  and  that  the  assent  of  the  National  Legislature  ought  not 
to  be  required  thereto."    This  was  indefinite,  and  purposely  so,  inasmuch  as 
the  question  was  difficult  in  itself  and  depended  upon  the  adoption  of  a  satis- 
factory form  of  government  by  the  States  in  Convention  assembled. 

Without  entering  into  details,  it  is  sufficient  to  note  in  this  connection 
that  the  unanimous  consent  required  by  the  thirteenth  of  the  Articles  of  Con- 
federation was  rejected,  as  it  had  been  found  impracticable  if  not  impossible 
to  obtain  the  consent  of  each  of  the  States  to  a  modification  of  the  Articles 
when,  rightly  or  wrongly,  the  interest  of  any  State  was  supposed  to  be  un- 
favorably affected  by  the  amendment;  and  it  is  not  too  much  to  say  that  the 
Articles  of  Confederation  failed  and  were  discarded  largely  because  of  the 
practical  if  not  the  theoretical  lack  of  power  of  amendment. 

As  in  so  many  other  parts  of  the  Constitution,  the  fifth  Article,  which 
states  the  final  views  of  the  Convention  on  this  subject,  was  the  result  of 
concession  and  compromise.  Thus,  the  States  themselves  conceded  that  all  - 
might  be  bound  by  the  decision  of  a  lesser  number,  eventually  fixed  at  three- 
fourths.  But  the  parties  which  had  stood  for  their  interests  and  had  secured 
their  recognition  were  unwilling  to  lose  the  fruits  of  victory  through  amend- 
ment. For  example,  the  States  in  which  slavery  existed  and  appeared  to 
be  profitable,  or  at  least  was  the  basis  of  their  economic  system,  insisted  that 
the  slave  trade,  guaranteed  by  Article  I,  Section  9  of  the  Constitution,  should 

299 


300 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL    ORGANIZATION 


Representation 
of  Small  States 
Not  Subject  to 
Amendment 


Methods 

of  Amendment 


not  be  lost.  Therefore,  it  was  provided  that  "  no  Amendment  which  may 
be  made  prior  to  the  Year  One  thousand  eight  hundred  and  eight  shall  in 
any  manner  affect  the  first  and  fourth  Clauses  in  the  Ninth  Section  of  the 
first  Article."  Indeed,  after  the  Constitution  was  a  completed  instrument, 
the  right  of  the  small  States  to  equality  was,  in  the  session  of  September  15, 
1787,  safeguarded  for  all  time  against  amendment;  for  although  the  Con- 
stitution may  be  amended  in  every  other  particular,  it  may  not,  according 
to  its  terms,  be  legally  amended  in  this  respect.  A  motion  was  put  to  that 
effect  by  a  delegate  of  one  of  the  large  States,  and  curiously  enough  by  that 
very  delegate  who,  in  conference  with  the  Virginian  delegates  before  the 
opening  of  the  Convention,  had  proposed  to  deprive  the  little  States  of 
equality.  "  Mr.  Govr.  Morris,"  to  quote  Mr.  Madison's  N'otes,  "moved  to 
annex  a  further  proviso  — '  that  no  State,  without  its  consent  shall  be  de- 
prived of  its  equal  suffrage  in  the  Senate.' '  And  Mr.  Madison,  perhaps 
not  without  a  smile,  for  he  possessed  a  keen  sense  of  humor,  continued, 
"  This  motion  being  dictated  by  the  circulating  murmurs  of  the  small  States 
was  agreed  to  without  debate,  no  one  opposing  it,  or  on  the  question,  saying 
no."  a  This  provision  appropriately  forms  the  last  and  final  clause  of  the 
fifth  Article  dealing  with  amendment. 

Admitting  therefore  that  the  Constitution  was  to  be  amended,  that  cer- 
tain interests  were  so  important  that  they  should  not  be  affected,  one  for  the 
period  of  twenty  years,  the  other  for  all  time,  the  question  of  amendment, 
accepted  in  principle,  became  a  matter  of  detail.  Extreme  advocates  of  the 
rights  of  the  States,  such  as  Mr.  Luther  Martin  of  Maryland,  would  insist 
that  no  modification  should  be  made  in  the  instrument  of  government  with- 
out the  consent  of  all  the  States.  The  advocates  of  a  consolidated  govern- 
ment could  not  propose  less  than  a  majority.  Neither  of  these  views  could 
prevail.  The  matter  was  plainly  one  for  compromise,  and  a  compromise  was 
effected. 

It  will  be  recalled  that,  in  the  matter  of  amendment,  Mr.  Randolph's  reso- 
lution on  the  subject  proposed  "  the  assent  of  the  national  Legislature  ought 
not  to  be  required  thereto,"  a  proposal  made,  no  doubt,  because  of  the  diffi- 
culty in  getting  Congress  to  move;  but  the  Congress  of  the  more  perfect 
Union  was  to  be  different  from  the  Congress  of  the  Confederation.  It  was 
in  any  event  a  central  authority,  and  it  might  appropriately  be  used  as  an 
agent  for  this  purpose,  provided,  however,  that  it  was  only  an  agent,  not 
a  principal  and  that  the  States  might  take  the  initiative  in  the  matter  if  they 
so  desired.  By  concession  and  compromise,  it  therefore  resulted  that  two- 
thirds  of  both  houses  or  the  legislatures  of  two-thirds  of  the  several  States 
were  to  propose  amendments,  but  their  ratification  was  in  no  event  to  depend 

'■Documentary  History  of  the  Constitution,  Vol.  Ill,  p.  758. 


AMENDMENTS    AND    RATIFICATIONS  301 

upon  the  Congress,  which  is  after  all  only  the  agent  of  the  States  for  cer- 
tain denned  legislative  purposes,  but  upon  the  States  or  their  citizens,  who  are 
the  source  of  power. 

The  amendments  thus  proposed  were  to  be  submitted  by  the  Congress. 
Whether  they  were  proposed  by  the  Congress  or  by  a  convention  called  by 
the  Congress  upon  the  initiative  of  the  States,  the  proposals  themselves  were 
to  be  "  ratified  by  the  Legislatures  of  three  fourths  of  the  several  States,  or 
by  Conventions  in  three  fourths  thereof,"  as  the  one  or  the  other  mode  of 
ratification  may  be  proposed  by  the  Congress.  Whereupon  the  amendments 
thus  approved  are  "  valid  to  all  Intents  and  Purposes,  as  Part  of  this  Con- 
stitution." It  will  be  observed  that  the  ratification  by  the  legislature  or  special 
convention  of  a  State  is  regarded  as  of  equal  force  and  effect,  whereas 
Article  VII  of  the  Constitution  provides  that  "  the  Ratification  of  the  Con- 
ventions of  nine  States,  shall  be  sufficient  for  the  Establishment  of  this  Con- 
stitution between  the  States  so  ratifying  the  same."  It  is  also  to  be  noted 
that,  in  the  letter  of  the  President  of  the  Convention  transmitting  on  its  be- 
half the  Constitution  to  the  Congress,  it  is  "  Resolved,  That  the  preceding 
Constitution  be  laid  before  the  United  States  in  Congress  assembled,  and  that 
it  is  the  Opinion  of  this  Convention,  that  it  should  afterwards  be  submitted 
to  a  Convention  of  Delegates,  chosen  in  each  State  by  the  People  thereof, 
under  the  Recommendation  of  its  Legislature,  for  their  Assent  and  Ratifica- 
tion; and  that  each  Convention  assenting  to,  and  ratifying  the  Same,  should 
give  Notice  thereof  to  the  United  States  in  Congress  assembled."  l 

The  question  may  arise  as  to  the  difference  of  procedure  in  ratifying  the 
Constitution  and  the  amendments  thereto,  for  the  Constitution  receives  its 
validity  only  from  the  approval  of  conventions  of  the  several  States,  whereas 
an  amendment  changing  the  Constitution  is  valid  if  made  by  the  legislature 
or  convention  of  the  States.  The  question  is  not  unimportant.  The  fifteenth 
of  Mr.  Randolph's  resolutions  provided  "  that  the  amendments  which  shall 
be  offered  to  the  Confederation,  by  the  Convention  ought  at  a  proper  time, 
or  times,  after  the  approbation  of  Congress  to  be  submitted  to  an  assembly 
or  assemblies  of  Representatives,  recommended  by  the  several  Legislatures 
to  be  expressly  chosen  by  the  people,  to  consider  &  decide  thereon."  The 
slightest  familiarity  with  the  proceedings  of  the  Convention  shows  that  the 
advocates  of  the  more  perfect  Union  regarded  the  ratification  of  the  Con- 
stitution by  conventions  specially  called  within  the  States  instead  of  the  legis- 
latures therein  existing  as  both  fundamental  and  essential  to  its  success.  To 
extreme  advocates  of  the  rights  of  the  State,  such  as  Mr.  Luther  Martin, 
the  ratification  by  the  State  was  sufficient,  as  the  State  was  sovereign  and  it 
was  immaterial  whether  it  be  by  special  assembly  or  by  the  legislature  of  the 
1  Ibid.,  Vol.  ii,  p.  20. 


302  THE   UNITED    STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

State,  as  this  was  an  internal  matter.  To  the  delegates  of  the  small  States 
ratification  by  the  legislatures  seemed  adequate,  inasmuch  as  the  legislature 
represented  the  State,  which  was  thus  necessarily  bound  by  its  act.  And  it 
must  be  confessed  that  this  view  is  reasonable,  and  that  the  difference  seems 
to  be  one  of  form,  not  of  substance,  unless  we  look  below  the  surface.  If 
A  System  we  do  we  see  that  the  whole  theory  of  the  Constitution  depends  upon  this 

of  Double  J 

constitu-  conception,  for  the  purpose  of  Mr.  Madison,  who  may  be  considered  as  the 

exponent  of  this  view,  was  not  merely  to  have  a  constitution  for  the  more 
perfect  Union,  but  to  have  this  constitution  become,  by  means  of  its  rati- 
fication by  the  people  of  each  of  the  States,  the  constitution  of  the  State  as  if 
it  had  originated  within  the  State.  In  this  event  the  constitution  would  be 
the  constitution  of  the  State  and  similar  to  an  ordinary  State  constitution 
in  that  it  referred  to  matters  affecting  the  State  and  therefore  properly  deter- 
mined by  it.  It  differed,  however,  from  the  ordinary  constitution  in  that 
it  also  affected  the  other  States.  It  was  therefore  devised  by  delegates  of 
the  States  and  ratified  by  conventions  of  their  people.  In  this  way  it  be- 
came the  constitution  of  all  for  general  purposes,  or  for  matters  in  common. 
The  constitution  framed  in  first  instance  and  adopted  by  the  people  of  the 
State  deals  with  local  or  particular  interests  and  not  with  interests  held  by 
the  States  in  common.  It  begins  and  ends  in  the  State  in  the  sense  that  its 
provisions  do  not  affect  the  States  in  general.  It  is  confined  to  the  State 
and  is  accordingly  considered  in  the  narrower  sense  the  constitution  of  the 
State.  In  either  case  ratified  by  a  Convention  of  the  people  of  the  State 
called  for  that  purpose,  it  is  the  constitution  of  that  State,  just  as  the  instru- 
ment of  government,  whether  originating  in  the  State,  framed  in  convention 
and  ratified  by  the  voters  of  the  State,  is  the  constitution  of  that  State.  The 
purpose  of  the  Convention  was  that  each  State  should  have  two  constitutions, 
one  for  general  purposes,  dealing  with  their  interests  in  common,  framed  by 
their  delegates  in  the  Federal  Convention  submitted  to  and  ratified  by  the 
Conventions  of  the  States  to  be  bound;  the  other  for  local  purposes,  con- 
fined to  or  not  extending  beyond  the  State,  framed  by  its  delegates  in  legis- 
lature or  in  convention  and  ratified  by  the  people  of  the  State  according  to 
their  pleasure. 

But  this  was  not  enough,  for  if  the  general  and  the  special  constitu- 
tion were  each  ratified  by  the  people  of  the  States,  each  would  have  an 
equal  validity  and  the  later  expression  of  the  popular  will  would  prevail. 
That  is  to  say,  if  the  State  constitution  were  adopted  subsequent  to  the  rati- 
fication of  the  Federal  Constitution  the  provisions  of  the  State  constitution 
would  necessarily  govern.  Therefore,  in  order  to  prevent  this,  and  by  one 
act  to  make  the  Federal  Constitution  the  supreme  law  of  the  State  as  well 
as  the  instrument  of  government  of  the  Union,  and  irrevocable  and  not 


AMENDMENTS    AND    RATIFICATIONS  303 

subject  to  amendment  except  by  the  vote  of  three-fourths  of  the  States,  it 
was  provided  in  the  second  clause  of  Article  VI  that  "  This  Constitution, 
and  the  Laws  of  the  United  States  which  shall  be  made  in  Pursuance  thereof; 
and  all  Treaties  made,  or  which  shall  be  made,  under  the  Authority  of  the 
United  States,  shall  be  the  supreme  Law  of  the  Land;  and  the  Judges  in  every 
State  shall  be  bound  thereby,  any  Thing  in  the  Constitution  or  the  Laws  of 
any  State  to  the  Contrary  notwithstanding." 

The  meaning  of  this  is  clear:  the  Constitution,  the  acts  of  Congress 
passed  in  accordance  with  its  terms  and  the  treaties  of  the  LTnited  States 
are  to  be  "  the  supreme  law  of  the  land,"  an  expression  ultimately  substituted 
by  the  Committee  on  Style  and  adopted  by  the  Convention  September  12, 
1787,  for  "the  supreme  law  of  the  several  States,  and  of  their  citizens  and 
inhabitants"  (Article  8  of  the  first  draft  of  the  Constitution,  submitted  on 
August  6th). 

There  was  to  be  one  constitution  of  each  State  for  general  purposes. 
There  could  be  as  many  State  constitutions  as  the  people  thereof  were 
minded  to  make,  but  the  Constitution  adopted  by  the  delegates  of  the  States, 
when  ratified  by  the  people  of  the  State,  was  to  be  supreme,  "  any  Thing 
in  the  Constitution  or  Laws  of  any  State  to  the  Contrary  notwithstanding."  1 

It  will  be  observed  that  the  judges  of  each  of  the  States  are  to  be  bound 
by  the  Constitution,  the  acts  of  Congress  made  in  pursuance  thereof  and 
the  treaties  of  the  United  States.  This  was  naturally  and  properly  so,  be- 
cause the  Constitution  of  the  United  States  was  also  the  law  of  the  land, 
that  is  to  say,  of  each  State.  The  act  of  Congress  in  pursuance  of  its  terms 
was  a  law  of  the  State.  A  treaty  of  the  United  States,  being  a  law  of  the 
United  States,  was  necessarily  a  law  of  each  State.  The  judicial  power  of 
the  State  would  necessarily  extend  to  the  provisions  of  the  Constitution, 
acts  of  Congress  and  treaties  of  the  United  States.     There  would,  however, 

*  The  question  as  to  what  constitutes  the  government  of  a  community  seeking  admission 
to  the  Union  is  a  political  rather  than  a  judicial  one,  and  the  power  of  recognizing  a  State 
government  was  left  in  the  hands  of  Congress.  This  was  made  clear  in  the  case  of  Luther 
v.  Borden  (7  Howard,  1,  42),  decided  in  1849,  in  which  the  constitutionality  of  the  accepted 
form  of  government  in  Rhode  Island  was  disputed.  Mr.  Chief  Justice  Taney,  in  deliver- 
ing the  opinion  of  the  court,  said : 

It  rests  with  Congress  to  decide  what  government  is  the  established  one  in  a 
State.  For  as  the  United  States  guarantee  to  each  State  a  republican  government,  Con- 
gress must  necessarily  decide  what  government  is  established  in  the  State  before  it  can 
determine  whether  it  is  republican  or  not. 

A  similar  issue  arose  in  the  case  of  Minor  v.  Happersett  (21  Wallace,  162),  decided  in 
1874,  and  was  settled  in  the  following  language: 

The  guarantee  [for  a  republican  form  of  government]  necessarily  implies  a  duty 
on  the  part  of  the  States  themselves  to  provide  such  a  government.  All  the  States 
had  governments  when  the  Constitution  was  adopted.  In  all,  the  people  participated 
to  some  extent,  through  their  representatives  elected  in  the  manner  specially  provided. 
These  governments  the  Constitution  did  not  change.  They  were  accepted  precisely  as 
they  were,  and  it  is,  therefore,  to  be  presumed  that  they  were  such  as  it  was  the  duty 
of  the  States  to  provide.  Thus  we  have  unmistakable  evidence  of  what  was  republican 
in  form,  within  the  meaning  of  that  term,  as  employed  in  the  Constitution. 


304  THE    UNITED   STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

be  a  difference  in  the  action  of  the  Federal  and  of  the  State  courts.  An  error 
of  the  State  court  in  the  interpretation  of  the  Federal  law  would  be  cor- 
rected on  appeal  by  the  Supreme  Court  of  the  United  States;  whereas  the 
constructions  put  upon  the  State  Constitution  and  the  laws  of  the  State 
would  be  followed  by  the  Supreme  Court  in  so  far  as  they  were  not  incon- 
sistent with  the  Federal  Constitution,  with  acts  of  Congress  made  in  pur- 
suance thereof,  or  with  treaties  of  the  United  States.  In  matters  of  general 
as  distinguished  from  local  jurisprudence,  the  Federal  Court  would  be  free 
to  decide  for  itself,  yet  would  be  inclined  to  accept  the  decision  of  the  State 
Court. 

That  there  might  be  no  doubt  as  to  the  supremacy  of  the  Federal  Con- 
stitution, the  acts  of  Congress  consistent  with  its  terms  and  treaties  of  the 
United  States,  it  was  further  and  wisely  provided  that  all  officers  of  the  States 
as  well  as  of  the  United  States  should  bind  their  consciences  by  oath  or 
affirmation  to  support  the  Federal  Constitution ;  thus  making  it  not  merely 
supreme  on  paper  and  of  general  application,  but  supreme  in  fact  in  the 
special  and  concrete  case.  Thus  the  clause  of  Article  VI  immediately  follow- 
ing the  one  last  quoted  proceeds : 

The  Senators  and  Representatives  before  mentioned,  and  the  Members 
of  the  several  State  Legislatures,  and  all  executive  and  judicial  Officers,  both 
of  the  United  States  and  of  the  several  States,  shall  be  bound  by  Oath  or 
Affirmation,  to  support  this  Constitution. 

Finally,  in  this  connection,  it  is  to  be  noted  that  the  Federal  Constitution 
was,  by  these  various  provisions,  made  the  supreme  and  fundamental  law  of 
each  State  of  the  Union  and  was  adopted  in  its  entirety  by  each  of  the  States 
Th«er  ratifying  it.     Article  V,  concerning  amendments,  was  therefore  necessarily 

to  Amend  adopted  as  an  integral  part  of  the  Constitution,  which,  in  providing  for  its 

amendment,  made  its  ratification  depend  not  merely  upon  the  sovereign 
pleasure  of  any  one  State  but  upon  the  approval  of  three-fourths  of  the  States 
of  the  Union.  It  was  therefore  beyond  the  power  of  any  one  State  to  change 
an  iota  of  its  fundamental  constitution,  except  in  conjunction  with  three- 
fourths  of  the  States.  An  attempt  to  do  so  would  be  illegal  and  could  only 
be  looked  upon  as  an  attempt  to  amend  this  constitution  in  a  method  contrary 
to  its  provisions.  It  could  not  be  done  according  to  the  law  of  the  land.  It 
could  only  be  done  by  revolution.  It  was,  after  the  formal  ratification  of  the 
Constitution  by  conventions  of  the  peoples  within  the  State,  immaterial 
whether  the  amendments  were  made  by  legislature  or  convention  within  the 
States,  inasmuch  as  the  supremacy  of  the  Constitution  had  been  established, 
and  inasmuch  as  it  could  not  be  disestablished  except  by  the  votes  of  three- 
fourths  of  the  States,  in  which  event  the  will  of  three-fourths  of  the  States, 


AMENDMENTS    AND    RATIFICATIONS 


305 


whether  expressed  in  legislature  or  in  convention,  would  prevail  in  fact  and 
should  prevail  in  law. 

In  a  letter  addressed  to  Edmund  Randolph,  under  date  of  April  8,  1787,  Ratification 
Mr.  Madison  outlined  the  principles  which  he  thought  should  be  contained 
in  the  new  Federal  pact,  and  expressed  the  opinion  that  "  to  give  the  new 
system  its  proper  energy,  it  will  be  desirable  to  have  it  ratified  by  the  authority 
of  the  people,  and  not  merely  by  that  of  the  Legislatures."  x  This  provision, 
therefore,  appeared  in  the  fifteenth  of  Mr.  Randolph's  resolutions,  and  it  was 
debated  at  large  and  in  detail  in  the  Convention.  In  the  session  of  June  5th 
it  appears  to  have  first  been  taken  up,  on  which  occasion  Mr.  Sherman 
"thought  such  a  popular  ratification  unnecessary:  the  articles  of  Confedera- 
tion providing  for  changes  and  alterations  with  the  assent  of  Congs.  and 
ratification  of  State  Legislatures."  Naturally,  Mr.  Madison,  as  the  author 
of  the  clause,  thought  "  this  provision  essential,"  saying  in  reply  to  Mr.  Sher- 
man that: 

The  articles  of  Confed".  themselves  were  defective  in  this  respect,  resting 
in  many  of  the  States  on  the  Legislative  sanction  only.  Hence  in  conflicts 
between  acts  of  the  States,  and  of  Congs.  especially  where  the  former  are  of 
posterior  date,  and  the  decision  is  to  be  made  by  State  Tribunals,  an  uncer- 
tainty must  necessarily  prevail,  or  rather  perhaps  a  certain  decision  in  favor 
of  the  State  authority.  He  suggested  also  that  as  far  as  the  articles  of  Union 
were  to  be  considered  as  a  Treaty  only  of  a  particular  sort,  among  the  Gov- 
ernments of  Independent  States,  the  doctrine  might  be  set  up  that  a  breach 
of  any  one  article,  by  any  of  the  parties,  absolved  the  other  parties  from 
the  whole  obligation.  For  these  reasons  as  well  as  others  he  thought  it  indis- 
pensable that  the  new  Constitution  should  be  ratified  in  the  most  unex- 
ceptionable form,  and  by  the  supreme  authority  of  the  people  themselves.2 

After  an  exchange  of  views  the  question  was  postponed,  but  was  passed 
on  the  12th,  Massachusetts,  Pennsylvania,  Virginia,  North  Carolina,  South 
Carolina  and  Georgia  voting  for,  Connecticut,  New  York  and  New  Jersey 
against,  and  the  delegations  of  Delaware  and  Maryland  divided.  On  July 
23d,  three  days  before  Mr.  Randolph's  resolutions  as  amended  were  referred 
to  the  Committee  of  Detail  to  report  a  draft  of  a  Constitution,  the  question  Discussion 
again  came  before  the  Convention  and  was  very  carefully  and  elaborately  Modeeof 
considered.  Mr.  Ellsworth  of  Connecticut  moved  that  the  Constitution  be 
referred  to  the  legislatures  of  the  States  for  ratification  and  was  appropriately 
seconded  by  Mr.  Patterson  of  New  Jersey.  In  the  course  of  the  debate 
Messrs.  Mason  and  Madison  argued  strongly  for  the  submission  of  the  Con- 
stitution to  conventions  within   the   States;   Mr.   Ellsworth   stood  out   for 


1  The  Writings  of  James  Madison,  Hunt  ed.,  Vol.  II,  p.  340. 
*  Documentary  History,  Vol.   Ill,   pp.  65-6. 


306  THE   UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

submission  to  the  Legislatures,  and  the  reasons  pro  and  con  were  admirably 
stated.     Thus, 

Col.  Mason  considered  a  reference  of  the  plan  to  the  authority  of  the 
people  as  one  of  the  most  important  and  essential  of  the  Resolutions.  The 
Legislatures  have  no  power  to  ratify  it.  They  are  the  mere  creatures  of  the 
State  Constitutions,  and  cannot  be  greater  than  their  creators.  And  he  knew 
of  no  power  in  any  of  the  Constitutions,  he  knew  there  was  no  power  in 
some  of  them,  that  could  be  competent  to  this  object.  Whither  then  must  we 
resort?  To  the  people  with  whom  all  power  remains  that  has  not  been 
given  up  in  the  Constitutions  derived  from  them.  It  was  of  great  moment 
he  observed  that  this  doctrine  should  be  cherished  as  the  basis  of  free  Gov- 
ernment. Another  strong  reason  was  that  admitting  the  Legislatures  to 
have  a  competent  authority,  it  would  be  wrong  to  refer  the  plan  to  them, 
because  succeeding  Legislatures  having  equal  authority  could  undo  the  acts 
of  their  predecessors ;  and  the  National  Gov1,  would  stand  in  each  State  on 
the  weak  and  tottering  foundation  of  an  Act  of  Assembly.  There  was  a 
remaining  consideration  of  some  weight.  In  some  of  the  States  the  Govts. 
were  not  derived  from  the  clear  &  undisputed  authority  of  the  people. 
This  was  the  case  in  Virginia.  Some  of  the  best  &  wisest  citizens  considered 
the  Constitution  as  established  by  an  assumed  authority.  A  National  Con- 
stitution derived  from  such  a  source  would  be  exposed  to  the  severest 
criticisms.1 

Mr.  Madison,  as  sponsor  for  the  proposition,  added  the  weight  of  his 
authority  to  its  adoption,  saying,  in  his  own  summary  of  his  views,  that  he 

thought  it  clear  that  the  Legislatures  were  incompetent  to  the  proposed 
changes.  These  changes  would  make  essential  inroads  on  the  State  Con- 
stitutions, and  it  would  be  a  novel  &  dangerous  doctrine  that  a  Legislature 
could  change  the  constitution  under  which  it  held  its  existence.  There 
might  indeed  be  some  Constitutions  within  the  Union,  which  had  given  a 
power  to  the  Legislature  to  concur  in  alterations  of  the  federal  Compact. 
But  there  were  certainly  some  which  had  not ;  and  in  the  case  of  these,  a 
ratification  must  of  necessity  be  obtained  from  the  people.  He  considered 
the  difference  between  a  system  founded  on  the  Legislatures  only,  and  one 
founded  on  the  people,  to  be  the  true  difference  between  a  league  or  treaty, 
and  a  Constitution.  The  former  in  point  of  moral  obligation  might  be  as  in- 
violable as  the  later.  In  point  of  political  operation,  there  were  two  important 
distinctions  in  favor  of  the  latter.  1.  A  law  violating  a  treaty  ratified  by  a  pre- 
existing law,  might  be  respected  by  the  Judges  as  a  law,  though  an  unwise  & 
perfidious  one.  A  law  violating  a  constitution  established  by  the  people  them- 
selves, would  be  considered  by  the  Judges  as  null  &  void.  2.  The  doctrine 
laid  down  by  the  law  of  Nations  in  the  case  of  treaties  is  that  a  breach  of 
any  one  article  by  any  of  the  parties,  frees  the  other  parties  from  their 
engagements.  In  case  of  a  union  of  people  under  one  Constitution,  the 
nature  of  the  pact  has  always  been  understood  to  exclude  such  an  interpre- 
tation. Comparing  the  two  modes  in  point  of  expediency  he  thought  all  the 
considerations  which  recommended  this  Convention  in  preference  to  Con- 
gress for  proposing  the  reform  were  in  favor  of  State  Conventions  in  prefer- 
ence to  the  Legislatures  for  examining  and  adopting  it.2 

1  Documentary  History,  Vol.  iii,  p.  405. 
'Ibid.,  Vol.  iii,  pp.  410-11. 


AMENDMENTS    AND    RATIFICATIONS 


307 


In  the  session  of  August  31,  Mr.  Madison  recurred  to  this  subject  in  con- 
nection with  the  difficulty  which  some  of  the  States,  particularly  Maryland, 
alleged  they  would  experience  because  the  State  constitutions  did  not  provide 
for  amendment  and  the  officials  of  the  States  were  bound  by  oath  to  obey  the 
provisions  thereof.     Mr.  Madison,  according  to  his  own  report, 

considered  it  best  to  require  Conventions ;  Among  other  reasons,  for  this,  that 
the  powers  given  to  the  Gen1.  Gov',  being  taken  from  the  State  Govts.  the 
Legislatures  would  be  more  disinclined  than  conventions  composed  in  part 
at  least  of  other  men;  and  if  disinclined,  they  could  devise  modes  apparently 
promoting,  but  really  thwarting  the  ratification.  .  .  .  The  people  were  in 
fact,  the  fountain  of  all  power,  and  by  resorting  to  them,  all  difficulties  were 
got  over.  They  could  alter  constitutions  as  they  pleased.  It  was  a  principle 
in  the  Bills  of  rights,  that  first  principles  might  be  resorted  to.1 

In  the  session  of  July  23d,  Mr.  Ellsworth  paid  special  attention  to  Mr. 
Mason's  views,  saying,  in  support  of  his  motion  that  the  Constitution  be 
referred  to  the  legislatures  of  the  States  for  ratication: 

If  there  be  any  Legislatures  who  should  find  themselves  incompetent  to 
the  ratification,  he  should  be  content  to  let  them  advise  with  their  constituents 
and  pursue  such  a  mode  as  wd.  be  competent.  He  thought  more  was  to  be 
expected  from  the  Legislatures  than  from  the  people.  ...  It  was  said  by 
Col.  Mason  1.  that  the  Legislatures  have  no  authority  in  this  case.  2.  that 
their  successors  having  equal  authority  could  rescind  their  acts.  As  to  the  2d. 
point  he  could  not  admit  it  to  be  well  founded.  An  act  to  which  the  States  by 
their  Legislatures,  make  themselves  parties,  becomes  a  compact  from  which 
no  one  of  the  parties  can  recede  of  itself.  As  to  the  1st.  point,  he  observed 
that  a  new  sett  of  ideas  seemed  to  have  crept  in  since  the  articles  of  Con- 
federation were  established.  Conventions  of  the  people,  or  with  power 
derived  expressly  from  the  people,  were  not  then  thought  of.  The  Legis- 
latures were  considered  as  competent.  Their  ratification  has  been  asquiesced 
in  without  complaint.2 

Mr.  Ellsworth  was  correct  in  stating  that  "  a  new  sett  of  ideas  seemed 
to  have  crept  in  since  the  articles  of  Confederation  were  established,"  and 
the  ratification  by  conventions  in  the  States  naturally  sprang  out  of  the  new 
ideas  by  virtue  of  which  the  people  were  the  source  of  all  power,  that  there- 
fore constitutions  should  not  be  conceded  by  a  king,  monarch,  or  legislature 
to  the  people,  but  that  all  power,  emanating  from  the  people,  was,  as  far  as 
they  considered  it  safe  or  necessary,  vested  in  branches  of  government 
created  by  them  and  to  be  exercised  by  officials  responsible  to  them. 

The  new  set  of  ideas  to  which  Mr.  Ellsworth  referred  are  thus  stated 

1  Ibid.,  p.  656. 
*  Ibid.,  p.  408. 


308  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

in  the  Virginia  bill  of  rights  of  June  12,  1776,  drafted  by  Mr.  Mason  himself : 

Sovereign  That  all  power  is  vested  in,  and  consequently  derived  from,  the  people; 

that  magistrates  are  their  trustees  and  servants,  and  at  all  times  amenable  to 
them. 

That  government  is,  or  ought  to  be,  instituted  for  the  common  benefit, 
protection,  and  security  of  the  people,  nation,  or  community ;  .  .  .  and  that, 
when  any  government  shall  be  found  inadequate  or  contrary  to  these  pur- 
poses, a  majority  of  the  community  hath  an  indubitable,  inalienable,  and 
indefeasible  right  to  reform,  alter,  or  abolish  it,  in  such  manner  as  shall  be 
judged  most  conducive  to  the  public  weal.1 

And  the  new  set  of  ideas  was  thus  stated  in  the  Declaration  of  Independence 
adopted  by  the  Congress  of  the  United  States  on  July  4,  1776: 

We  hold  these  truths  to  be  self-evident,  that  all  men  are  created  equal, 
that  they  are  endowed  by  their  Creator  with  certain  unalienable  Rights,  that 
among  these  are  Life,  Liberty  and  the  pursuit  of  Happiness.  That  to  secure 
these  rights,  Governments  are  instituted  among  Men,  deriving  their  just 
powers  from  the  consent  of  the  governed,  That  whenever  any  Form  of 
Government  becomes  destructive  of  these  ends,  it  is  the  Right  of  the  People 
to  alter  or  to  abolish  it,  and  to  institute  new  Government,  laying  its  founda- 
tion on  such  principles  and  organizing  its  powers  in  such  form,  as  to  them 
shall  seem  most  likely  to  effect  their  Safety  and  Happiness. 

In  accordance  with  these  ideas  the  Constitution,  to  bind  the  people,  should 
be  ratified  by  the  people  as  the  source  of  power,  not  by  the  legislature  as  the 
agent  thereof.  This  was  the  view  of  the  Convention,  expressed  immediately 
after  Mr.  Madison's  remarks  of  July  23d,  New  Hampshire,  Massachusetts, 
Pennsylvania,  Virginia,  North  Carolina,  South  Carolina,  and  Georgia  vot- 
ing against  Mr.  Ellsworth's  motion  to  refer  the  Constitution  to  the  legis- 
latures of  the  States,  and  Connecticut,  Delaware  and  Maryland  voting  for 
the  motion.  New  York  was  not  represented,  and  New  Jersey  took  no  part  in 
the  vote. 

The  letter  of  the  President  of  the  Convention  transmitting  the  Consti- 
tution with  its  recommendation  that  it  should  be  submitted  for  ratification 
to  conventions  of  the  States  specially  called  for  this  purpose  was  received  by 
the  Congress;  and,  on  September  28,  1787,  it  was  "  Resolved  Unanimously 
that  the  said  Report  with  the  resolutions  and  letter  accompanying  the  same 
be  transmitted  to  the  several  legislatures  in  Order  to  be  submitted  to  a 
convention  of  Delegates  chosen  in  each  state  by  the  people  thereof  in  con- 
formity to  the  resolves  of  the  Convention  made  and  provided  in  that  case."  2 
This  was  done,  and  in  the  course  of  that  and  the  ensuing  year  the  Constitu- 

1  Thorpe.  Charters  and  Constitutions,  Vol.  7,  p.  3813 ;   Poore,  pp.   1908-9. 
'  Documentary  History,  Vol.  ii,  p.  22. 


AMENDMENTS   AND    RATIFICATIONS  309 

tion  was  ratified  by  conventions  held  in  the  different  States.  There  were  two 
exceptions:  North  Carolina,  which  failed  to  ratify  it  at  this  time,  although  it 
did  so  on  November  21,  1789,  after  the  Constitution  had  gone  into  effect 
and  the  government  thereunder  organized ;  Rhode  Island,  which  was  not 
represented  in  the  Convention  but  which,  on  May  29,  1790,  adopted  the 
Constitution,  or  "  adhered  to  it  "  as  we  should  say  in  international  parlance. 

Some  of  the  States  ratified  the  Constitution  unanimously,  without  diffi-    spirit  of 

the 

culty  and  without  the  suggestion  of  amendments.  Other  States  ratified  it  Ratifications 
by  a  close  vote,  with  great  difficulty,  and  in  the  belief  that  certain  amend- 
ments to  the  Constitution  would  be  proposed  and  submitted  to  the  States  in 
accordance  with  the  provisions  of  Article  V  thereof  relating  to  amendments. 
It  is  to  be  observed,  however,  that  the  Constitution  was  in  every  case 
accepted  in  its  entirety;  that  it  was  absolutely,  not  conditionally,  ratified, 
although  at  one  time  its  advocates  were  so  hard  pressed  as  to  consider  this 
proposition.  Colonel  Hamilton,  with  the  New  York  Convention  on  his 
hands,  consulted  Mr.  Madison,  with  the  Virginian  Convention  just  off  his 
hands.  The  latter  ended  whatever  wavering  the  Colonel  may  have  had  by 
stating  diat  a  conditional  ratification  would  be  no  ratification  at  all;  but 
a  rejection.     Mr.  Madison's  exact  language  was: 

My  opinion  is  that  a  reservation  of  a  right  to  withdraw,  if  amendments 
be  not  decided  on  under  the  form  of  the  Constitution  within  a  certain  time, 
is  a  conditional  ratification ;  that  it  does  not  make  N.  York  a  member  of 
the  New  Union,  and  consequently  that  that  she  could  not  be  received  on  that 
plan.1 

It  is  important  to  bear  this  statement  in  mind,  inasmuch  as  it  shows 
that,  although  desirous  of  having  New  York  become  a  member  of  the  more 
perfect  Union,  and  although  Mr.  Madison  was  in  a  frame  of  mind  to  make 
concessions,  as  his  attitude  in  the  international  conference  and  in  the  State 
convention  abundantly  showed,  he  nevertheless  felt  that  a  State  should 
decide  on  the  threshold  whether  it  should  or  should  not  enter  the  Union, 
and  that,  if  it  decided  to  enter  and  actually  did  enter  the  Union,  it  could 
not  withdraw.  Mr.  Madison's  language  is  important  for  the  further  reason 
that,  as  the  Constitution  derives  its  validity  solely  from  its  ratification  by 
the  States,  it  was  essential  that  it  be  ratified  by  them  in  its  entirety  and 
unconditionally  in  order  to  be  susceptible  of  a  universal  interpretation  and 
of  a  universal  application. 

Delaware,  the  smallest  of  the  States  represented  in  the  Convention,  was 
the  first  to  act  in  favor  of  the  Constitution,  and  its  action  was  unanimous. 
New  Jersey  was  the  third  in  point  of  time,  and  its  action  was  unanimous, 

1  Ibid.,  vol.  iv,  p.  803. 


310  THE    UNITED   STATES:    A    STUDY   IX    INTERNATIONAL   ORGANIZATION 

which  showed  that  the  small  States  were  satisfied  with  the  compromise  by 
virtue  whereof  their  equality  was  maintained  and  safeguarded.  The  second 
State  to  ratify  was  the  Commonwealth  of  Pennsylvania.  It  is  to  be  noted 
however  that  while  the  Constitution  was  carried,  there  was  a  strong  minority 
opposed  to  it.  The  variety  of  amendments  suggested  as  reasonable  by  and 
acceptable  to  this  minority  appears  to  have  won  favor  not  only  with  the 
opponents  of  the  Constitution  in  other  States  but  are  said  to  have  been  the 
basis  of  the  amendments  proposed  by  Mr.  Madison  on  June  6,  1789,  in  the 
first  session  of  the  first  Congress  of  the  United  States  held  under  the  Con- 
stitution. 

Delaware  ratified  December  7,  1787;  Pennsylvania,  December  12,  1787; 
New  Jersey,  December  18,  1787;  Georgia,  January  2,  1788;  and  Connecticut, 
January  9,  1788,  without  amendments.  As  previously  stated,  the  action  of 
Delaware  and  New  Jersey  was  unanimous.  In  Pennsylvania  the  friends  of 
the  Constitution  had  a  comfortable  majority,  and  a  still  larger  majority  in 
Connecticut. 

One  great  State  had  declared  itself.  Massachusetts,  the  second  of  the 
great  States,  adopted  the  Constitution  February  7,  1788,  but  only  after 
a  hard  fought  contest  and  the  adoption  of  amendments.  The  adoption  by 
this  commonwealth  grew  out  of  a  faith  and  confidence  that  amendments 
would  be  made  to  the  Constitution  and  that  the  particular  amendments 
which  the  Massachusetts  Convention  recommended  would  be  laid  before 
the  Congress.  Indeed  its  Senators  and  Representatives  were  instructed 
so  to  do,  in  accordance  with  the  provision  of  the  Constitution  relating 
to  amendments.  This  method  of  action  seems  to  have  satisfied  the 
scruples  of  Mr.  John  Hancock,  President  of  the  Convention,  and  known 
to  be  not  overfavorable  to  the  Constitution.  He  had  been  President  of  the 
Continental  Congress ;  and  the  large,  bold  hand  in  which  he  signed  his  name 
to  the  Declaration  of  Independence  keeps  his  memory  green  among  his 
countrymen.  He  was  then  in  private  life,  with  an  eye,  it  is  said,  to  the 
governorship  of  his  State.  Some  ill-natured  persons,  enemies  of  the  great 
man,  thought  that  he  aspired  to  the  presidency,  in  the  event  that  Virginia 
did  not  enter  the  more  perfect  Union.  The  method  also  satisfied  Mr. 
Samuel  Adams,  the  great  Revolutionary  leader  and  advocate  of  democracy, 
who  was  at  first  opposed  to  the  Constitution,  but  who  was  won  over  to 
its  support  by  the  recommendation  of  amendments.  The  action  of  Massa- 
chusetts was  important  not  merely  because  it  was  then  one  of  the  three  great 
States,  without  whose  support  the  Constitution  could  not  well  be  put  into 
effect,  but  because  it  provided  the  means  of  overcoming  opposition  in  the 
other  States,  especially  in  the  then  third  great  State  of  Virginia,  and  in 
New  York.     The  method  of  recommendations  was  indeed  the  bridge  that- 


AMENDMENTS    AND   RATIFICATIONS  311 

carried  the  doubting  Thomases  and  in  some  instances  the  opponents  across 
to  the  other  side.  It  is  worthy  of  note  that  after  the  action  of  Massachusetts 
only  one  of  the  remaining  States  ratified  without  suggesting  amendments. 
It  is  appropriate  to  add  that  the  following  letter  from  General  Wash- 
ington, published  in  Virginia,  in  Pennsylvania  and  in  a  Massachusetts  paper 
during  the  session  of  the  Convention  of  that  State,  had  a  great  effect  upon 
the  good  people  thereof  and  inclined  them  to  conciliation,  by  showing  them 
how  to  realize  the  improvements  to  the  Constitution  which  they  had  in  view 
and  in  strict  accordance  with  its  express  provisions  concerning  amendment : 

And  clear  I  am,  if  another  Foederal  Convention  is  attempted,  the 
sentiments  of  the  members  will  be  more  discordant.  ...  I  am  fully  per- 
suaded .  .  .  that  it  [the  Constitution]  or  disunion  is  before  us.  If  the 
first  is  our  choice,  ...  a  constitutional  door  is  opened  for  amendments, 
and  may  be  adopted  in  a  peaceable  manner  without  tumult  or  disorder.1 

Maryland  ratified  without  suggesting  amendments  April  28,  1788;  South 
Carolina  on  May  23,  1788,  and  in  view  of  the  action  subsequently  taken  by 
that  State  the  material  portion  of  its  act  of  ratification  is  quoted : 

And  whereas  it  is  essential  to  the  preservation  of  the  rights  reserved  to 
the  several  states,  and  the  freedom  of  the  people,  under  the  operations  of 
a  general  government,  that  the  right  of  prescribing  the  manner,  time,  and 
places,  of  holding  the  elections  to  the  federal  legislature,  should  be  forever 
inseparably  annexed  to  the  sovereignty  of  the  several  states, — This  Con- 
vention doth  declare,  that  the  same  ought  to  remain,  to  all  posterity,  a  per- 
petual and  fundamental  right  in  the  local,  exclusive  of  the  interference 
of  the  general  government,  except  in  cases  where  the  legislatures  of  the 
states  shall  refuse  or  neglect  to  perform  and  fulfil  the  same,  according  to 
the  tenor  of  the  said  Constitution. 

This  Convention  doth  also  declare,  that  no  section  or  paragraph  of  the 
said  Constitution  warrants  a  construction  that  the  states  do  not  retain 
every  power  not  expressly  relinquished  by  them,  and  vested  in  the  general 
government  of  the  Union. 

Resolved,  That  the  general  government  of  the  United  States  ought  never 
to  impose  direct  taxes,  but  where  the  moneys  arising  from  the  duties, 
imports,  and  excise,  are  insufficient  for  the  public  exigencies,  nor  then  until 
Congress  shall  have  made  a  requisition  upon  the  states  to  assess,  levy,  and 
pay,  their  respective  proportions  of  such  requisitions ;  and  in  case  any 
state  shall  neglect  or  refuse  to  pay  its  proportion,  pursuant  to  such  requisi- 
tion, then  Congress  may  assess  and  levy  such  state's  proportion,  together 
with  interest  thereon,  at  the  rate  of  six  per  centum  per  annum,  from  the 
time  of  payment  prescribed  by  such  requisition. 

Resolved,  That  the  third  section  of  the  sixth  article  ought  to  be  amended, 
by  inserting  the  word  "  other  "  between  the  words  "  no  "  and  "  religious." 

1  Documentary  History,  vol.  iv,  pp.  406-7. 


Ratification 


312  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Resolved,  That  it  be  a  standing  instruction  to  all  such  delegates  as  may 
hereafter  be  elected  to  represent  this  state  in  the  general  government,  to 
exert  their  utmost  abilities  and  influence  to  effect  an  alteration  of  the  Con- 
stitution, conformably  to  the  aforegoing  resolutions.1 

South  Carolina  was  the  eighth  of  the  States  to  ratify,  but  the  Constitu- 
tion made  the  ratification  of  nine  a  prerequisite  to  its  going  into  effect.  With 
the  ratification  of  New  Hampshire  on  June  21,  1788,  the  people  of  nine 
States  had  pledged  their  faith  to  the  Constitution,  and  it  had  become  the 
government  of  each  of  the  nine  and  of  the  Union  composed  of  the  nine. 
The  influence  of  Massachusetts,  to  which  New  Hampshire  belonged  for  a 
long  time,  was  very  marked  upon  that  State  during  the  colonial  period,  and 
the  influence  of  Massachusetts  did  not  cease  with  the  Revolution,  as  the 
adoption  by  New  Hampshire  of  the  State  Constitution  and  of  the  Consti- 
tution of  the  United  States  amply  disclosed.  When  the  Convention  met  in 
Difficulties  of  New  Hampshire  in  February,  1788,  the  opponents  of  adoption  were  in  a 
slight  majority.  The  friends  of  the  new  government,  however,  were  able 
to  adjourn  until  June,  by  which  time  the  members  were  more  favorably  dis- 
posed, so  that,  after  four  days'  debate,  the  Constitution  was  ratified  by  a 
vote  of  57  to  47,  with  a  series  of  amendments,  as  in  the  case  of 
Massachusetts. 

The  action  of  New  Hampshire  inspired  the  supporters  of  the  Constitution 
with  confidence  as  well  as  hope,  as  it  would  be  less  difficult  for  the  States 
in  doubt  as  to  the  Constitution  to  join  the  more  perfect  Union  when  formed 
than  to  refuse  to  take  part  in  its  formation.  It  is,  however,  doubtful 
whether  the  Union  would  have  been  formed  and  the  government  under  the 
Constitution  have  gone  into  effect  in  1789  with  chances  of  success  unless 
New  York,  in  a  way  the  dividing  line  between  the  eastern  and  the  middle 
States,  and  especially  if  Virginia,  the  great  dominion  to  the  South,  had  not 
decided  for  better  or  for  worse  to  unite  themselves  with  their  sister  States. 
Had  the  latter  State  not  done  so,  the  world  might  have  lost  the  perfect  type 
and  model  of  a  chief  executive  which  the  American  people  found  in  Wash- 
ington, who,  as  a  Virginian,  could  not  have  been  President  of  the  Union  in 
which  Virginia  was  not  represented. 

However,  Virginia  ratified  the  Constitution  on  June  26,  1788,  but  five 
days  after  the  favorable  action  of  New  Hampshire,  before  the  action  of  that 
State  was  known  and  while  it  appeared  that  Virginia,  in  addition  to  pro- 
posing the  Constitution,  had  by  its  adherence  to  the  Union  made  it  operative. 

The  struggle  in  Virginia  was  a  struggle  of  giants.  The  ratification  was 
opposed  by  Patrick  Henry,  the  most  famous  of  American  orators,  who  was 
appointed  a  member  of  the  Federal  Convention  but  who  declined  to  ac- 
cept,   saying    somewhat    inelegantly    but    forcibly    that   he    "  smelt    a    rat." 

1  Elliot,  Debates,  Vol.  I,  p.  325. 


AMENDMENTS    AND    RATIFICATIONS  313 

It  was  also  opposed  by  George  Mason,  a  member  of  the  Convention,  who 
refused  to  sign,  primarily  because  Congress  was  not  restrained  by  a  two- 
thirds  vote  in  matters  of  navigation  and  because  of  a  lack  of  a  bill  of  rights, 
and  of  whom  Mr.  Madison  said  "  that  he  possessed  the  greatest  talents  for 
debate  of  any  man  he  had  ever  seen,  or  heard  speak."  *  It  was  a  herculean 
task  for  the  quiet,  studious  and  unimpressive  Madison  to  stem  and  to  over- 
come the  tide  of  such  opposition.  He  was  supported  without  the  Conven- 
tion by  General  Washington  and  within  the  Convention  by  Edmund  Ran- 
dolph who  had  refused  to  sign  the  Constitution  largely  because  he  felt  it 
should  be  submitted  for  revision  to  a  second  convention  which  he  now  saw 
to  be  impossible.  Mr.  Madison  was  also  aided  by  John  Marshall,  a  young 
and  vigorous  man  of  thirty-two,  destined  years  later  to  expound  the  Consti- 
tution from  the  Bench  and  to  make  the  more  perfect  Union  even  more  perfect 
through  a  series  of  masterly  decisions.  Yet  Mr.  Madison,  insisting  that  the 
Constitution  be  read  in  its  entirety  and  that  each  clause  be  considered  in 
relation  to  all  of  its  parts  instead  of  in  isolation,  was  able  to  show  that  the 
Constitution  did  create  a  more  perfect  Union  of  States,  just  as  we  today 
believe  that  it  has  created  the  most  perfect  Union  of  States  ever  known. 

The  vote,  however,  on  June  25,  1788,  was  close,  89  delegates  voting  for 
its  ratification  and  79  against.  The  ratification  was  accompanied  by  a  bill  of 
rights  of  twenty  articles,  and  the  bill  itself  by  twenty  other  amendments, 
which  were  to  be  presented  to  the  Congress  for  adoption  as  amendments  to 
the  Constitution.  If  George  Mason  could  not  bend  to  his  will  the  delegates  of 
the  Philadelphia  Convention  and  impose  upon  them  in  express  terms  a  bill  of 
rights,  he  was  irresistible  in  Virginia,  to  which  State  he  had  given  a  bill  of 
rights  prefixed  to  its  Constitution,  which  is  today  a  model;  and  if  the  advo- 
cates of  amendment  to  the  Constitution,  as  it  was  ultimately  framed  in 
Philadelphia,  failed  to  impress  their  fellow  delegates  with  the  justness  of 
their  views,  the  Convention  of  Virginia  stood  squarely  for  amendment. 
And  in  order  that  the  spirit  in  which  the  Constitution  was  adopted  might  be 
known  and  understood  by  their  countrymen,  the  Convention  accompanied 
it  with  the  following  declaration,  which  may  at  least  be  taken  as  evidence 
that  the  Virginians  had  no  intention  of  degrading  the  State  into  a  province: 

We,  the  delegates  of  the  people  of  Virginia,  duly  elected  in  pursuance 
of  a  recommendation  from  the  General  Assembly,  and  now  met  in  Con- 
vention, having  fully  and  freely  investigated  and  discussed  the  proceedings 
of  the  Federal  Convention,  and  being  prepared  as  well  as  the  most  mature 
deliberation  hath  enabled  us,  to  decide  thereon, — Do,  in  the  name  and  in 
behalf  of  the  people  of  Virginia,  declare  and  make  known,  that  the  powers 
granted'  under  the  Constitution,  being  derived  from  the  people  of  the 
United  States,  may  be  resumed  by  them,  whensoever  the  same  shall  be  per- 
verted  to  their   injury  or   oppression,   and  that  every  power   not  granted 

'John  P.  Kennedy,  Memoirs  of  the  Life  of  William  Wirt,  1849,  Vol.  I,  p.  354. 


314  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

thereby  remains  with  them,  and  at  their  will ;  that,  therefore,  no  right,  of 
an)'  denomination,  can  be  cancelled,  abridged,  restrained,  or  modified,  by 
the  Congress,  by  the  Senate  or  House  of  Representatives,  acting  in  any 
capacity,  by  the  President,  or  any  department  or  officer  of  the  United  States, 
except  in  those  instances  in  which  power  is  given  by  the  Constitution  for 
those  purposes ;  and  that,  among  other  essential  rights,  the  liberty  of  con- 
science, and  of  the  press,  cannot  be  cancelled,  abridged,  restrained,  or  modi- 
fied, by  any  authority  of  the  United  States.  With  these  impressions,  with 
a  solemn  appeal  to  the  Searcher  of  all  hearts  for  the  purity  of  our  inten- 
tions, and  under  the  conviction  that  whatsoever  imperfections  may  exist 
in  the  Constitution  ought  rather  to  be  examined  in  the  mode  prescribed 
therein,  than  to  bring  the  Union  into  danger  by  a  delay  with  a  hope  of 
obtaining  amendments  previous  to  the  ratifications, — We,  the  said  dele- 
gates, in  the  name  and  in  behalf  of  the  people  of  Virginia,  do,  by  these 
presents,  assent  to  and  ratify  the  Constitution  recommended,  on  the  17th 
day  of  September,  1787,  by  the  Federal  Convention,  for  the  government  of 
the  United  States,  hereby  announcing  to  all  those  whom  it  may  concern,  that 
the  said  Constitution  is  binding  upon  the  said  people,  according  to  an 
authentic  copy  hereto  annexed,  in  the  words  following.    .    .    -1 

Contest  in  The  contest  in  New  York  was  even  more  severe  than  in  Virginia,  and, 

New  \ork  ° 

indeed,  than  in  any  other  State ;  for  when  the  Convention  met,  the  opponents 
of  ratification  were  securely  in  the  saddle  under  the  presidency  of  George 
Clinton,  Governor  of  the  State,  and  under  the  leadership  of  Melancthon 
Smith,  who,  however,  showed  himself  to  be  a  man  of  principle  and  as  such 
open  to  conviction.  The  friends  of  the  Constitution,  were,  however,  led  in 
a  masterly  manner  by  Alexander  Hamilton  who,  as  is  well  known,  took  a 
rather  insignificant  part  in  the  Philadelphia  Convention,  where  he  was  out- 
voted by  his  two  colleagues  before  they  withdrew  and  where  he  apparently 
had  little  sympathy  for  any  plan  proposed  by  others  and  not  much  confi- 
dence in  his  own.  Any  constitution,  however,  was  better  to  him  than  none. 
He  loyally  accepted  the  Constitution  as  drafted,  as  the  best  that  could  be 
got  under  the  circumstances,  and  devoted  his  commanding  abilities  and  his 
energy,  which  proved  to  be  resistless,  to  its  ratification  by  the  State  of  which 
he  was  not  a  native  but  whereof  he  is  today  the  most  distinguished  of  a 
long  line  of  distinguished  citizens. 

For  Colonel  Hamilton  it  was  not  enough  to  argue  and  debate,  and  by 
means  thereof  to  produce  conviction  within  the  Convention.  He  felt  the 
necessity  of  creating  an  atmosphere  without,  which  should  influence  opinion 
within  the  Convention.  For  this  purpose  he  planned  a  series  of  papers 
explaining  and  justifying  the  Constitution,  to  be  issued  at  rapid  intervals  in 
the  public  press  of  the  State.  With  him  in  the  undertaking  were  associated 
John  Jay,  who  contributed  five  articles,  and  Mr.  Madison  who  wrote  some 
twenty-nine.     He  himself  wrote  fifty-one  of  the  eighty-five  articles,  which 

'  Elliot,  Debates,  Vol.  I,  p.  327. 


AMENDMENTS   AND   RATIFICATIONS  315 

taken  together  form  The  Federalist,  then  a  journalistic  venture,  today  the   The 

°  *  Federalist 

classic  exposition  of  the  Constitution. 

But  even  the  ability  of  Alexander  Hamilton,  John  Jay  and  Robert  R. 
Livingston  within  the  New  York  Convention,  with  the  aid  of  James  Madison 
without  its  doors,  might  have  proved  unavailing  had  the  stars  in  their 
courses  not  fought  for  the  Constitution.  The  first  week  of  the  session  in 
New  York  showed  that  two-thirds  were  opposed  to  ratification,  but  the  news, 
welcome  to  Hamilton  although  distasteful  to  the  majority,  that  the  ninth 
State,  New  Hampshire,  had  ratified  the  Constitution,  decided  that  the  experi- 
ment was  to  be  tried.  On  July  3d  the  news  of  the  ratification  by  Virginia 
reached  the  members  of  the  New  York  Convention.  Should  New  York  fail 
to  adopt  the  Constitution  it  would  be  surrounded  by  the  New  England 
States  on  the  East  and  New  Jersey  and  Pennsylvania  to  the  South,  and  it 
would  be  so  far  separated  from  Rhode  Island  and  North  Carolina,  which 
had  not  then  ratified  the  Constitution,  that  it  could  not  well  form  a  union 
with  them.  In  the  end,  Melancthon  Smith,  leader  of  the  opposition,  rose 
and  stated  that  he  would  vote  for  the  Constitution,  and  by  a  majority  of 
three  it  was  adopted  by  the  Convention,  "  in  confidence  that  the  amendments 
which  shall  have  been  proposed  to  the  said  Constitution  will  receive  an 
early  and  mature  consideration,"  and  "  in  full  confidence  "  that  a  convention 
should  be  called  and  convened  for  proposing  amendments.1 

The  amendments  were  very  elaborate.  Their  character  may  be  judged 
by  the  opening  paragraphs  of  what  may  be  considered  the  preamble  to  the 
act  of  ratification,  in  which  it  is  stated: 

That  all  power  is  originally  vested  in,  and  consequently  derived  from, 
the  people,  and  that  government  is  instituted  by  them  for  their  common 
.  interest,  protection,  and  security. 

That  the  enjoyment  of  life,  liberty,  and  the  pursuit  of  happiness,  are 
essential  rights,  which  every  government  ought  to  respect  and  preserve. 

That  the  powers  of  government  may  be  reassumed  by  the  people  when- 
soever it  shall  become  necessary  to  their  happiness ;  that  every  power,  juris- 
diction, and  right,  which  is  not  by  the  said  Constitution  clearly  delegated 
to  the  Congress  of  the  United  States,  or  the  departments  of  the  govern- 
ment thereof,  remains  to  the  people  of  the  several  states,  or  to  their  respec- 
tive state  governments,  to  whom  they  may  have  granted  the  same;  and  that 
those  clauses  in  the  said  Constitution,  which  declare  that  Congress  shall 
not  have  or  exercise  certain  powers,  do  not  imply  that  Congress  is  entitled 
to  any  powers  not  given  by  the  said  Constitution ;  but  such  clauses  are  to 
be  construed  either  as  exceptions  to  certain  specified  powers,  or  as  inserted 
merely  for  greater  caution.2 

The  adoption  of  the  Constitution,  however,  even  with  express  declara- 
tions and  a  series  of  recommendations,  was  a  concrete  victory  for  the  cause 

1  Ibid.,  Vol.  i,  p.  329. 

2  Ibid.,  p.  327. 


316  THE    UNITED    STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

of  union,  inasmuch  as  it  assured  geographical  unity  and  that  the  authority 
of  the  Government  should  extend  from  New  Hampshire  on  the  north  to  the 
south  of  Virginia.  Rhode  Island  was  on  the  outskirts  and  could  not  affect 
the  Union ;  and  North  Carolina,  between  Virginia  and  South  Carolina,  could 
not  resist  propinquity,  which  affects  even  the  union  of  States. 

A  Convention  called  in  North  Carolina  adjourned  August  4,  1788,  with- 
out ratifying  the  Constitution,  for  the  reasons  stated  in  its  resolution  of 
August  1st  of  that  month  and  year: 

Resolved,  That  a  declaration  of  rights,  asserting  and  securing  from 
encroachments  the  great  principles  of  civil  and  religious  liberty,  and  the 
unalienable  rights  of  the  people,  together  with  amendments  to  the  most 
ambiguous  and  exceptionable  parts  of  the  said  Constitution  of  government, 
ought  to  be  laid  before  Congress,  and  the  convention  of  the  states  that  shall 
or  may  be  called  for  the  purpose  of  amending  the  said  Constitution,  for 
their  consideration,  previous  to  the  ratification  of  the  Constitution  afore- 
said, on  the  part  of  the  State  of  North  Carolina.1 

It  is  proper  to  say  in  this  connection  that  the  declaration  of  rights  pro- 
posed by  North  Carolina  consisted  of  twenty  Articles,  the  amendments  of 
twenty-six.  The  ratification,  however,  of  eleven  of  the  thirteen  States,  the 
formation  of  the  Union  and  its  successful  operation  without  North  Carolina 
and  Rhode  Island,  caused  the  good  people  of  the  former  State  to  bethink 
themselves,  with  the  result  that,  on  November  21,  1789,  the  people  of  North 
Carolina,  assembled  in  convention,  adopted  and  ratified  "  the  said  Consti- 
tution and  form  of  government."  And  on  May  29,  1790,  the  people  of 
Rhode  Island,  in  convention  assembled,  likewise  adopted  the  Constitution, 
with  a  series  of  declarations  in  the  nature  of  a  bill  of  rights  and  of  amend- 
ments almost  as  large  as  the  State,  which  by  this  time  had  come  to  the  con- 
clusion that  the  Union  was  more  necessary  to  it  than  it  was  to  the  Union. 
Thus  through  the  long  and  narrow  way  of  amendments  and  ratifications, 
the  course  of  the  Constitution  was  finally  fashioned.  State  and  Union  came 
to  their  own.  Divergent  interests,  at  first  seemingly  irreconcilable,  merged. 
The  way  opened  for  the  United  States  of  America. 

1  Elliot,  Debates,  Vol.  i,  pp.  331-2. 


XVI 
GOVERNMENT  SET  UP:  AMENDMENTS 

Whilst  the  last  members  were  signing  it  [the  Constitution]  Doct?  Franklin  looking 
towards  the  Presidents  Chair,  at  the  back  of  which  a  rising  sun  happened  to  be  painted, 
observed  to  a  few  members  near  him,  that  Painters  had  found  it  difficult  to  distinguish  in 
their  art  a  rising  from  a  setting  sun.  I  have  said  he,  often  and  often  in  the  course  of  the 
Session,  and  the  vicissitudes  of  my  hopes  and  fears  as  to  its  issue,  looked  at  that  behind 
the  President  without  being  able  to  tell  whether  it  was  rising  or  setting:  But  now  at 
length  I  have  the  happiness  to  know  that  it  is  a  rising  and  not  a  setting  Sun.  (Madison's 
Notes  of  Debates  in  the  Federal  Convention  of  17S7 ,  Session  of  September  17,  1787,  Docu- 
mentary History  of  the  Constitution  of  the  United  States  of  America,  1786-1870,  Vol.  Ill, 
1900,  p.  770.) 

It  has  hitherto  been  understood,  that  the  supreme  power,  that  is,  the  sovereignty  of 
the  people  of  the  States,  was  in  its  nature  divisible,  and  was  in  fact  divided,  according  to 
the  Constitution  of  the  U.  States,  between  the  States  in  their  united  and  the  States  in 
their  individual  capacities  that  as  the  States,  in  their  highest  sov.  char.,  were  competent  to 
surrender  the  whole  sovereignty  and  form  themselves  into  a  consolidated  State,  so  they 
might  surrender  a  part  &  retain,  as  they  have  done,  the  other  part,  forming  a  mixed  Gov* 
with  a  division  of  its  attributes  as  marked  out  in  the  Constitution.   .    .    . 

Certain  it  is  that  the  constitutional  compact  of  the  U.  S.  has  allotted  the  supreme 
power  of  Gov'  partly  to  the  United  States  by  special  grants,  partly  to  the  individual  States 
by  general  reservations;  and  if  sovereignty  be  in  its  nature  divisible,  the  true  question 
to  be  decided  is,  whether  the  allotment  has  been  made  by  the  competent  authority,  and 
this  question  is  answered  by  the  fact  that  it  was  an  act  of  the  majority  of  the  people  in 
each  State  in  their  highest  sovereign  capacity,  equipollent  to  a  unanimous  act  of  the 
people  composing  the  State  in  that  capacity.  (James  Madison  on  "  Sovereignty."  1S35, 
Gaiilard  Hunt,  Editor,  The  Writings  of  James  Madison,  Vol.  IX,  1910,  pp.  568-9,  572.) 

"  These  states  are  constituent  parts  of  the  United  States.  They  are  members  of  one 
great  empire,"  ("members  of  the  American  confederacy;"  2  Pet.  312,)  "for  some  pur- 
poses sovereign,  for  some  purposes  subordinate."  6  Wh.  414.  The  political  character  of 
the  several  states  of  this  Union,  in  relation  to  each  other,  is  this:  "For  all  national  pur- 
poses, the  states  and  the  citizens  thereof,  are  one;  united  under  the  same  sovereign  authority, 
and  governed  by  the  same  laws.  In  all  other  respects  the  states  are  necessarily  foreign  to 
and  independent  of  each  other.  "  They  form  a  confederated  government ;  yet  the  several 
states  retain  their  individual  sovereignties,  and  with  respect  to  their  municipal  regulations, 
are  to  each  other  sovereign."  2  Pet.  590,  1;  10  Pet.  579.  S.  P.;  12  Wh.  334.  "The 
national  and  state  systems  are  to  be  regarded  as  one  whole."  6  Wh.  419.  "  In  America, 
the  powers  of  sovereignty  are  divided  between  the  government  of  the  Union,  and  those 
of  the  states.  They  are  each  sovereign  with  respect  to  the  objects  committed  to  it; 
and  neither  sovereign  with  respect  to  the  objects  committed  to  the  other."  4  Wh.  410. 
( Mr.  Justice  Baldwin,  A  General  Vieiv  of  the  Origin  and  Nature  of  the  Constitution  and 
Government  of  the  United  States,  1837,  p.  14.) 

The  great  and  incurable  defect  of  the  confederation  was,  the  dependence  of  con- 
gress on  state  laws  to  execute  and  to  carry  into  effect  their  resolutions  and  requisi- 
tions: generally  speaking,  the  jurisdiction  of  the  old  and  new  congress  was  the  same, 
except  as  to  the  regulation  of  commerce  and  a  judicial  system.  The  states  would  not 
delegate  the  power  of  execution  to  operate  directly  on  the  subjects  of  its  jurisdiction ; 
the  people  of  the  states  granted  this  power,  by  the  constitution,  by  which  alone  the  federal 
government  became  efficient  and  competent  to  the  objects  of  its  creation.  (Mr.  Justice 
Baldwin,  A  General  View  of  the  Origin  and  Nature  of  the  Constitution  and  Government' 
of  the  United  States,  1837,  pp.  105-106.) 

3i7 


318  THE  UNITED  STATES:  A  STUDY  IN  INTERNATIONAL  ORGANIZATION 

In  this  outline  of  our  old  constitution  of  government,  we  see  the  pattern  of  our  new 
one,  though  with  a  different  distribution  of  powers;  the  most  important  of  those  which 
are  in  the  king,  by  prerogative,  in  England,  are  granted  to  congress;  the  judicial  power 
is  vested  in  the  courts  of  the  United  States,  exclusively  ;  and  the  executive  power  is  as 
much  defined  by  enumeration,  as  the  legislative  and  judicial  powers  of  the  constitution 
are.  Herein  consists  one  great  difference  between  the  two  governments;  and  from  this 
there  arises  another,  which  is  all  important.  The  powers  not  delegated,  or  prohibited, 
being  reserved  to  the  states  respectively,  or  the  people ;  none  can  exist  by  prerogative,  or 
inherent  power,  in  any  branch  of  the  government.  ( Mr.  Justice  Baldwin,  A  General  View 
of  the  Origin  and  Nature  of  the  Constitution  and  Government  of  the  United  States,  1837, 
pp.  54-55-) 

This  change  was  effected  by  the  constitution,  which,  in  the  language  of  this  Court,  is 
a  grant.  "  The  grant  does  not  convey  power,  which  might  be  beneficial  to  the  grantor,  if 
retained  by  himself,  or  which  can  move  solely  to  the  benefit  of  the  grantee;  but  is  an 
investment  of  power  for  the  general  advantage,  in  the  hands  of  agents,  selected  for  that 
purpose,  which  power  can  never  be  exercised  by  the  people  themselves,  but  must  be  placed 
in  the  hands  of  agents  or  lie  dormant,"  9.  Wh.  189.  The  language  of  the  constitution  is 
the  same.  "  All  legislative  powers  herein  granted,  shall  be  vested  in  a  congress  of  the 
United  States,"  &c.  "  The  executive  power  shall  be  vested  in  a  president  of  the  United 
States  of  America."  "  The  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court." 

Here  then,  there  is  something  visible  to  the  judicial  eye,  tangible  by  judicial  minds, 
reasoning,  illustration,  and  analogy;  intelligible  by  judicial  rules  and  maxims,  which, 
through  all  time,  have  prescribed  its  nature,  effect,  and  meaning  It  is  a  grant,  by  a 
grantor,  to  a  grantee,  of  the  things  granted;  which  are,  legislative,  executive,  and  judicial 
power,  vested  by  a  constituent,  in  agents,  for  the  enumerated  purposes  and  objects  of  the 
grant.  It  declares  the  grantor  and  constituent,  to  be  "the  people  of  the  United  States," 
who,  for  the  purposes  set  forth,  "ordained  and  established"  it  as  a  "constitution  for  the 
United  States  of  America;"  "the  supreme  law  of  the  land;"  creating  what  its  framers 
unanimously  named,  "the  federal  government  of  these  states."  Its  frame  was  "done  in 
convention,  by  the  unanimous  consent  of  the  states  present."  The  7th  article  whereof 
declared  that,  "  the  ratification  of  the  conventions  of  nine  states,  shall  be  sufficient  for 
the  establishment  of  this  constitution,  between  the  states  so  ratifying  the  same."  And,  to 
leave  no  doubt  of  their  intention,  as  to  what  should  be  deemed  a  convention  of  a  state, 
the  members  thereof,  by  the  unanimous  order  of  the  convention,  laid  it  before  congress, 
with  their  opinions,  that  it  should  be  submitted  to  a  convention  of  delegates  chosen  in 
each  state,  by  the  people  thereof,  under  the  recommendation  of  its  legislatures,  for  their 
assent  and  ratification.  1  Vol.  Laws  U.  S.  70,  71.  (Mr.  Justice  Baldwin,  A  General  View 
of  the  Origin  and  Nature  of  the  Constitution  and  Government  of  the  United  States,  1837, 
pp.  u- is.) 

These  colonies  were  not  declared  to  be  free  and  independent  states,  by  substituting 
congress  in  the  place  of  king  and  parliament ;  nor  by  the  people  of  the  states,  transferring 
to  the  United  States,  that  allegiance  they  had  owed  to  the  crown;  or  making  with  the 
state,  or  nation,  of  the  United  States,  a  political  connection,  similar  to  that  which  had 
existed  with  the  state  of  Great   Britain. 

A  state,  to  be  free,  must  be  exempt  from  all  external  control ;  on  a  "  separate  and 
equal  station  with  the  other  powers  of  the  earth ; "  within  whose  territorial  limits,  no 
state  or  nation  can  have  any  jurisdiction:  this  is  of  the  essence  of  freedom,  and  being 
free,  in  the  grant  and  exercise  of  legislative  power  at  their  pleasure,  a  state,  and  the 
people  thereof,  must  have  the  absolute  sovereignty,  illimitable,  save  by  the  people  them- 
selves. Such  was  the  situation  of  the  states  and  people,  from  1776  till  1781,  when  the 
several  state  legislatures  made  an  act  of  federation,  as  allied  sovereigns,  which  was  only 
a  league  or  alliance ;  and  being  utterly  defective,  was  substituted  by  a  new  act  of  federa- 
tion ;  a  constitution,  ordained  by  the  people  of  the  several  states,  in  their  primary  inherent 
right  and  power,  existing  in  themselves ;  before  any  portion  of  its  sovereignty  had  been 
impaired  by  any  act  of  federation,  or  any  severance  from  its  territorial  boundary.  {Mr. 
Justice  Baldwin,  A  General  View  of  the  Origin  and  Nature  of  the  Constitution  and' 
Government  of  the  United  States,  1837,  p.  29.) 

That  a  new  government  was  necessary  was  the  universal  opinion ;  but  the  diffi- 
culty was,  in  agreeing  what  additional  powers  should  be  given  to  congress  by  the 
surrender  of  the  states;  no  statesman  or  jurist  pretended  that  this  could  be  done  in  any 


GOVERNMENT  SET  UP:   AMENDMENTS  319 

other  way  than  by  the  voluntary  act  of  the  separate  states ;  in  their  sovereign  capacity,  by 
the  people  in  conventions.   .    .   . 

The  powers  of  the  general  government  are  made  up  of  concessions  from  the  several 
states;  whatever  is  not  expressly  given  to  the  former,  the  latter  expressly  reserves;" 
7  Cr.  33;  United  States  v.  Hudson  and  Goodwin.  (Mr.  Justice  Baldwin,  A  General  View 
of  the  Origin,  and  Nature  of  the  Constitution  and  Government  of  the  United  States,  1S37, 
pp.  66-67.) 

On  the  other  hand,  if  the  government  is  admitted  to  be  the  work  of  the  separate 
people  of  each  state,  there  can  be  no  pretext  for  nullification:  the  sovereign  power  of  the 
state  has  made  the  grant;  has  declared  it  the  law  of  the  land,  supreme  in  obligation  over 
its  own  laws  and  constitution;  has  commanded  its  judges  to  obey  it;  has  appointed  a 
tribunal  to  expound  it;  and  bound  itself  to  abide  by  changes  to  be  made  by  alterations  or 
amendments.  (Mr.  Justice  Baldwin,  A  General  View  of  the  Origin  and  Nature  of  the 
Constitution  and  Government  of  the  United  States,  1837,  p.  101.) 

I  go  further,  and  affirm  that  bills  of  rights,  in  the  sense  and  to  the  extent  in  which 
they  are  contended  for,  are  not  only  unnecessary  in  the  proposed  Constitution,  but  would 
even  be  dangerous.  They  would  contain  various  exceptions  to  powers  not  granted ;  and, 
on  this  very  account,  would  afford  a  colorable  pretext  to  claim  more  than  were  granted. 
For  why  declare  that  things  shall  not  be  done  which  there  is  no  power  to  do?  Why,  for 
instance,  should  it  be  said  that  the  liberty  of  the  press  shall  not  be  restrained,  when  no 
power  is  given  by  which  restrictions  may  be  imposed?  .  .  .  This  may  serve  as  a  specimen 
of  the  numerous  handles  which  would  be  given  to  the  doctrine  of  constructive  powers,  by 
the  indulgence  of  an  injudicious  zeal  for  bills  of  rights.   .    .    . 

There  remains  but  one  other  view  of  this  matter  to  conclude  the  point.  The  truth  is, 
after  all  the  declamations  we  have  heard,  that  the  Constitution  is  itself  in  every  rational 
sense,  and  to  every  useful  purpose,  a  bill  of  rights.  The  several  bills  of  rights 
in  Great  Britain  form  its  constitution,  and  conversely  the  constitution  of  each  State  is  its 
bill  of  rights.  And  the  proposed  Constitution,  if  adopted,  will  be  the  bill  of  rights  of  the 
Union.  (Alexander  Hamilton  in  The  Federalist,  No.  84,  1788,  Paul  Leicester  Ford, 
Editor,  1898,  pp.  573-575-) 

Articles  in  Addition  To,  and  Amendment  Of,  the  Constitution  of  the  United  States 
of  America.  Proposed  by  Congress  (1789),  and  Ratified  by  the  Legislatures  of  the 
Several  States  (1789-1791)  Pursuant  to  the  Fifth  Article  of  the  Original  Con- 
stitution. 

Article  I. 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  prohibiting  the 
free  exercise  thereof ;  or  abridging  the  freedom  of  speech,  or  of  the  press ;  or  the  right 
of  the  people  peaceably  to  assemble,  and  to  petition  the  Government  for  a  redress  of 
grievances. 

Article  II. 

A  well  regulated  Militia,  being  necessary  to  the  security  of  a  free  State,  the  right  of 
the  people  to  keep  and  bear  Arms,  shall  not  be  infringed. 

Article  III. 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house,  without  the  consent  of 
the  Owner,  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed  by  law. 

Article  IV. 
The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and  effects,  against 
unreasonable  searches  and  seizures,  shall  not  be  violated,  and  no  Warrants  shall  issue,  but 
upon   probable   cause,   supported   by   Oath   or   affirmation,   and   particularly   describing   the 
place  to  be  searched,  and  the  persons  or  things  to  be  seized. 

Article  V. 
No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  infamous  crime,  unless 
on  a  presentment  or  indictment  of  a  Grand  Jury,  except  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  Militia,  when  in  actual  service  in  time  of  War  or  public  danger; 
nor  shall  any  person  be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy  of  life 
or  limb:  nor  shall  be  compelled  in  any  Criminal  Case  to  be  a  witness  against  himself,  nor 


320  THE   UNITED    STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

be  deprived  of  life,  liberty,  or  property,  without  due  process  of  law;  nor  shall  private  prop- 
erty be  taken  for  public  use,  without  just  compensation. 

Article  VI. 
In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  ascertained  by  law,  and  to  be  informed 
of  the  nature  and  cause  of  the  accusation ;  to  be  confronted  with  the  witnesses  against 
him  ;  to  have  compulsory  process  for  obtaining  Witnesses  in  his  favor,  and  to  have  the 
Assistance  of  Counsel  for  his  defence. 

Article  VII. 
In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty   dollars, 
the  right  of  trial  by  jury  shall  be  preserved,  and  no   fact  tried  by  a  jury  shall  be  other- 
wise re-examined  in  any  Court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law. 

Article  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and  unusual 
punishments  inflicted. 

Article  IX. 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be  construed  to  deny 
or  disparage  others  retained  by  the  people. 

Article  X. 
The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  prohibited  by 
it  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the  people. 

It  has  been  said  that  the  liberty  which  the  Anglo-Saxon  race  everywhere  enjoys  is 
derived  from  the  British  Constitution  as  settled  by  the  Revolution  of  1688.  All  subsequent 
revolutions  in  Europe  are  not  more  plainly  the  offspring  of  the  French  Revolution  than  was 
ours  of  the  Revolution  of  1688.  It  was  founded,  like  that,  upon  a  breach  of  the  funda- 
mental law  by  the  rulers.  The  language  of  the  State  Conventions  at  the  time  of  the 
separation  from  England  shows  that  the  people  universally  regarded  the  liberties  for 
which  they  were  contending  as  an  inheritance  from  their  forefathers.  When  their  inde- 
pendence was  achieved,  the  object  of  the  people  was  still  to  preserve  under  the  new 
conditions  these  ancient  liberties.  "  Upon  that  body  and  stock  of  inheritance,"  to  adopt 
the  language  of  Burke  in  reference  to  the  Whig  leaders  of  1688,  "  they  took  care  not  to 
inoculate  any  scion  alien  to  the  nature  of  the  original  plant."  Although  the  framers  of 
our  Constitution  were  without  any  grasp  of  the  modern  conception  of  the  historical  contin- 
uity of  the  race,  they  revered  the  ancient  constitutional  traditions  of  England.  And  thus 
it  comes  to  pass  that  Magna  Charta,  the  Acts  of  the  Long  Parliament,  the  Declaration 
of  Right,  the  Declaration  of  Independence,  and  the  Constitution  of  1787  constitute  the 
record  of  an  evolution.  (IV.  T.  Brantly,  Of  the  Influence  of  European  Speculation  in  the 
Formation  of  the  Federal  Constitution,  1S80,  the  Southern  Law  Review,  New  Series,  Vol. 
VI,  iSSi,  pp.  351-352) 

The  first  ten  amendments  were  adopted  immediately  after  the  Constitution.  Several 
States  had  ratified  it  upon  the  faith  of  the  pledge  given  by  the  Federalists  that  such  amend 
ments  would  be  made  They  are  in  the  nature  of  a  Bill  of  Rights,  the  unwise  omission  of 
which  from  the  Constitution  was  made  the  subject  of  loud  complaint.  These  amendments 
recite  the  immemorial  privileges  of  British  subjects,  and  employ  in  some  instances  the 
very  words  of  Magna  Charta  and  the  Declaration  of  Right.  (IV.  T.  Brantly,  Of  the  Influence 
of  European  Speculation  in  the  Formation  of  the  Federal  Constitution,  iSSo,  The  Southern 
Law  Reviciv,  New  Series,  Vol.  VI,  18S1,  p.  366.) 

The  several  agreements  in  England  for  better  securing  the  rights  and  liberties  of  the 
subjects,  were  the  models  for  the  "Bill  of  Rights,"  as  distinguished  in  some  state  constitu- 
tions from  the  "  Frame  of  Government."  The  more  farsighted  saw  this  distinction  to  be 
illusory,  and  justly  observed  that  the  constitution  was  itself  a  "  Bill  of  Rights."  (James 
Harvey  Robinson,  The  Original  and  Derived  Features  of  the  Constitution.  1890.  Annals 
of  the  American  Academy  of  Political  and  Social  Science,  1890-1891,  Vol.  I,  p.  209.) 

In  its  chief  features,  then,  we  find  our  Constitution  to  be  a  skillful  synthesis  of  elements 
carefully  selected  from  those  entering  into  the  composition  of  the  then  existing  state  gov- 
ernments. The  Convention  "was  led  astray  by  no  theories  of  what  might  be  good,  but 
clave  closely  to  what  experience  had  demonstrated  to  be  good."  (James  Harvey  Robinson, 
The  Original  and  Derived  Features  of  the  Constitution,  1890,  Annals  of  the  American' 
Academy  of  Political  and  Social  Science,  1890-1891,  Vol.  I,  p.  242.) 


CHAPTER  XVI 

GOVERNMENT   SET    UP:   AMENDMENTS 

It  was  foreseen  by  the  members  of  the  Convention  that  if  a  constitution  Per 
were  to  be  formed  which  would  meet  the  approval  of  the  States,  a  period 
would  necessarily  elapse  between  its  adoption  and  the  organization  of  the 
government  under  its  provisions.  In  the  meantime  the  Congress  of  the  Con- 
federation would  need  to  continue,  and  it  would  be  required  to  take  measures 
to  institute  the  new  government.  The  twelfth  of  Mr.  Randolph's  resolu- 
tions dealt  in  general  terms  with  this  question,  to  the  effect  that  "  provision 
ought  to  be  made  for  the  continuance  of  Congress  and  their  authorities  and 
privileges,  until  a  given  day  after  the  reform  of  the  articles  of  Union  shall 
be  adopted."  The  first  draft  of  the  Constitution  prepared  by  the  Committee 
of  Detail  and  reported  by  it  on  August  6th  went  more  into  particulars,  but 
not  wholly  to  the  satisfaction  of  the  Convention,  which  slightly  amended 
and  adopted  the  twenty-third  Article  in  the  session  of  August  31st.  It  was, 
however,  thought  best  that  the  Article,  being  of  a  temporary  nature,  be 
stricken  from  the  Constitution,  and  be  included  in  the  formal  letter  of  the 
President  of  the  Convention  transmitting  the  Constitution  to  the  Congress, 
in  which  document  it  is  thus  worded: 

That  it  is  the  Opinion  of  this  Convention,  that  as  soon  as  the  Conven- 
tions of  nine  States  shall  have  ratified  this  Constitution,  the  United  States 
in  Congress  assembled  should  fix  a  Day  on  which  Electors  should  be 
appointed  by  the  States  which  shall  have  ratified  the  same,  and  a  Day  on 
which  the  Electors  should  assemble  to  vote  for  the  President,  and  the 
Time  and  Place  for  commencing  Proceedings  under  this  Constitution.  That 
after  such  Publication  the  Electors  should  be  appointed,  and  the  Senators 
and  Representatives  elected :  That  the  Electors  should  meet  on  the  Day 
fixed  for  the  Election  of  the  President,  and  should  transmit  their  Votes 
certified,  signed,  sealed  and  directed,  as  the  Constitution  requires,  to  the 
Secretary  of  the  United  States  in  Congress  assembled,  that  the  Senators 
and  Representatives  should  convene  at  the  Time  and  Place  assigned;  that 
the  Senators  should  appoint  a  President  of  the  Senate,  for  the  sole  Pur- 
pose of  receiving,  opening  and  counting  the  Votes  for  President ;  and,  that 
after  he  shall  be  chosen,  the  Congress,  together  with  the  President,  should, 
without  Delay,  proceed  to  execute  this  Constitution.1 

Upon  the  ratification  of  the  Constitution  by  the  ninth  of  the  States,  the 
Congress,  to  which  the  Constitution  had  been  transmitted,  was  in  a  position 

'  Documentary  History  of  the  Constitution,  Vol.  II,  pp.  20-1. 

321 


322  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

to  take  the  necessary  action.  Therefore  on  July  2,  1788,  it  was,  upon  the 
suggestion  of  the  President  of  that  body,  "  Ordered,  That  the  ratifications 
of  the  constitution  of  the  United  States  transmitted  to  Congress  be  referred 
to  a  Comee.  to  examine  the  same  and  report  an  Act  to  Congress  for  putting 
the  said  constitution  into  operation  in  pursuance  of  the  resolutions  of  the 
late  federal  Convention."  1  The  motion  passing  in  the  affirmative,  the  com- 
mittee to  which  the  ratifications  were  referred  reported  on  July  14,  1788, — 
a  year  to  a  day  before  the  storming  of  the  Bastille,  ushering  in  the  new 
order  of  things  in  the  Old  World — an  act  for  this  purpose,  which  was  adopted 
on  September  13,  1788,  in  the  following  form: 

Whereas  the  Convention  assembled  in  Philadelphia  pursuant  to  the 
resolution  of  Congress  of  the  21st.  of  Feb*.  1787  did  on  the  17th.  of  Sep1, 
in  the  same  year  report  to  the  United  States  in  Congress  assembled  a  con- 
stitution for  the  people  of  the  United  States,  Whereupon  Congress  on  the 
28  of  the  same  Sept.  did  resolve  unanimously  "  That  the  said  report  with  the. 
resolutions  &  letter  accompanying  the  same  be  transmitted  to  the  several 
legislatures  in  order  to  be  submitted  to  a  convention  of  Delegates  chosen 
in  each  state  by  the  people  thereof  in  conformity  to  the  resolves  of  the 
convention  made  and  provided  in  that  case  "  And  whereas  the  constitu- 
tion so  reported  by  the  Convention  and  by  Congress  transmitted  to  the  sev- 
eral legislatures  has  been  ratified  in  the  manner  therein  declared  to  be  suf- 
ficient for  the  establishment  of  the  same  and  such  ratifications  duly  authen- 
ticated have  been  received  by  Congress  and  are  filed  in  the  Office  of  the 
Secretary  therefore  Resolved  That  the  first  Wednesday  in  Jan?,  next  be 
the  day  for  appointing  Electors  in  the  several  states,  which  before  the  said 
day  shall  have  ratified  the  said  Constitution;  that  the  first  Wednesday  in 
febY  next  be  the  day  for  the  electors  to  assemble  in  their  respective  states 
and  vote  for  a  president;  And  that  the  first  Wednesday  in  March  next  be 
the  time  and  the  present  seat  of  Congress  the  place  for  commencing  pro- 
ceedings under  the  said  constitution.2 

The  New  The  elections  were  held  in  the  States  which  had  ratified  the  Constitution. 

Government 

Begun  On  March  4,  1789,  the  government  under  the  Constitution  began  in  the  city 

of  New  York,  where  on  April  30,  1789,  George  Washington,  the  unanimous 
choice  of  the  electors,  was  inaugurated  President  of  the  United  States. 

The  great  purpose  for  which  the  delegates  had  assembled  in  convention 
throughout  the  summer  of  1787  was  accomplished.  A  Constitution  creating 
a  more  perfect  Union  of  the  States  had  been  formed,  and  the  government 
thereunder  organized.  But  the  apprehensions  of  the  States  which  had  rati- 
fied the  Constitution  with  much  difficulty  and,  in  certain  cases,  with  no  little 
misgiving,  remained  to  be  satisfied.  If  the  declarations,  explanations,  and  pro- 
posed amendments  which  accompanied  the  ratifications  in  some  instances 
did  not  create  a  legal,  they  nevertheless  raised  a  moral,  obligation  to  propose 

1  Documentary  History,  Vol.  II,  p.  161. 
*  Ibid.,  pp.  263-4. 


GOVERNMENT   SET   UP:    AMENDMENTS  323 

amendments  to  the  Constitution  in  accordance  with  its  provisions  in  order 
to  meet  the  expressed  desires  of  States  which  might  not  have  ratified  the 
Constitution  without  assurances  amounting  to  a  moral  certainty  that  appro- 
priate steps  would  be  taken  to  this  end. 

Accordingly,  on  Tune  8,  1789,  in  the  first  session  of  the  first  Congress   Amendments 

°  J  J         .  .  °  Moved 

held  under  the  Constitution,  Mr.  Madison,  then  a  member  of  the  House  of 
Representatives  from  Virginia,  moved  in  that  body,  in  accordance  with 
notice  to  that  effect  of  the  4th  instant,  the  consideration  of  various  amend- 
ments to  the  Constitution.     In  support  of  the  motion  he  said: 

this  house  is  bound  by  every  motive  of  prudence,  not  to  let  the  first  ses- 
sion pass  over  without  proposing  to  the  state  legislatures  some  things  to 
be  incorporated  into  the  constitution,  as  will  render  it  as  acceptable  to  the 
whole  people  of  the  United  States,  as  it  has  been  found  acceptable  to  a 
majority  of  them.    .    .    . 

It  cannot  be  a  secret  to  the  gentlemen  in  this  house,  that,  notwithstand- 
ing the  ratification  of  this  system  of  government  by  eleven  of  the  thirteen 
United  States,  in  some  cases  unanimously,  in  others  by  large  majorities; 
yet  still  there  is  a  great  number  of  our  constituents  wbo  are  dissatisfied 
with  it ;  among  whom  are  many  respectable  for  their  talents,  their  patriotism, 
and  respectable  for  the  jealousy  they  have  for  their  liberty,  which,  though 
mistaken  in  its  object,  is  laudable  in  its  motive.  .  .  .  We  ought  not  to 
disregard  their  inclination,  but,  on  principles  of  amity  and  moderation,  con- 
form to  their  wishes,  and  expressly  declare  the  great  rights  of  mankind 
secured  under  this  constitution.1 

Mr.  Madison  then  alluded  to  the  two  States  "  that  have  not  thought  fit 
to  throw  themselves  into  the  bosom  of  the  confederacy,"  and,  saying  on 
this  point  that  "  it  is  a  desirable  thing,  on  our  part  as  well  as  theirs,  that  a 
re-union  should  take  place  as  soon  as  possible,"  he  predicted  if  measures 
should  be  taken  at  that  juncture  which  were  both  prudent  and  requisite, 
"  that  in  a  short  time  we  should  see  that  disposition  prevailing  in  those 
states  that  are  not  come  in,  that  we  have  seen  prevailing  in  those  states 
which  are.2 

After  stating  that  all  power  is  subject  to  abuse,  and  admitting  that  it  was 
possible  to  guard  more  securely  against  possible  abuse  of  the  powers  granted 
to  the  general  government  than  had  been  done,  he  said  that  by  so  doing 
they  had  something  to  gain  and  nothing  to  lose.  While  unwilling  to  offer 
amendments  going  to  the  whole  structure  of  the  government,  he  was  never- 
theless willing  to  propose  such  as  seemed  likely  in  his  opinion  to  meet  "  with 
the  concurrence  of  two-thirds  of  both  houses,  and  the  approbation  of  three- 
fourths  of  the  state  legislatures,"  assuring  the  House  that  he  would  not 
propose  a  single  alteration  which  he  did  not  wish  to  see  made,  and  which  in 

1  The  Congressional  Register,  Vol.  I,  pp.  424-5. 
'  Ibid.,  p.  425. 


324  THE   UNITED   STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

his  opinion  was  "  intrinsically  proper  in  itself,  or  proper  because  it  is  wished 
for  by  a  respectable  number  "  of  his  fellow  citizens. 

Passing  to  the  objections  which  had  been  made  against  the  Constitution, 
he  said  that  they  were  of  various  kinds.  "  Some  were  levelled  against  its 
structure,  because  the  president  was  without  a  council;  because  the  senate, 
which  is  a  legislative  body,  had  judicial  powers  in  trials  on  impeachments; 
and  because  the  powers  of  that  body  were  compounded  in  other  respects, 
in  a  manner  that  did  not  correspond  with  a  particular  theory;  because  it 
grants  more  power  than  is  supposed  to  be  necessary  for  every  good  purpose, 
and  controuls  the  ordinary  powers  of  the  state  governments."  x 
Demand  But  Mr.  Madison  avowed  his  belief  that  "  the  great  mass  of  the  people 

for  a   Bill  .  „  .  .    . 

of  Rights  wj10  opposed  it,  disliked  it  because  it  did  not  contain  effectual  provision  against 

the  encroachments  on  particular  rights,  and  those  safeguards  which  they  have 
been  long  accustomed  to  have  interposed  between  them  and  the  magistrate 
who  exercised  the  sovereign  power;  nor  ought  we  to  consider  them  safe, 
while  a  great  number  of  our  fellow  citizens  think  these  securities  neces- 
sary." That  is  to  say,  that  while  certain  provisions  of  the  Constitution  were 
objected  to,  the  great  criticism  directed  against  it,  as  a  whole,  was  that  it  did 
not  contain  a  bill  of  rights.  Such  a  bill  of  rights  was  necessary  for  the  pro- 
tection of  the  people  of  the  States  against  the  abusive  power  on  the  part  of 
the  general  government  making  it  clear  to  them ;  although  it  seemed  evident 
to  Air.  Madison,  that  the  powers  not  granted  to  the  general  government 
under  the  Constitution  were  reserved  to  the  States,  and  therefore  beyond  the 
reach  of  the  United  States  as  such. 

Mr.  Madison  further  declared  that  he  did  not  believe  in  the  necessity  of 
a  bill  of  rights,  but  that  he  considered  one  neither  improper  nor  altogether 
useless.  Adverting  to  the  bills  of  this  nature  passed  by  the  States,  he  thus 
analyzed  their  content : 

"  In  some  instances  they  assert  those  rights  which  are  exercised  by  the 
people  in  forming  and  establishing  a  plan  of  government.  In  other 
instances,  they  specify  those  rights  which  are  retained  when  particular 
powers  are  given  up  to  be  exercised  by  the  legislature.  In  other  instances, 
they  specify  positive  rights,  which  may  seem  to  result  from  the  nature  of 
the  compact.  ...  In  other  instances,  they  lay  down  dogmatic  maxims 
with  respect  to  the  construction  of  the  government ;  declaring,  that  the 
legislative,  executive,  and  judicial  branches  shall  be  kept  separate  and  dis- 
tinct.   .    .    . 

But  whatever  may  be  [the]  form  which  the  several  states  have  adopted  in 
making  declarations  in  favor  of  particular  rights,  the  great  object  in  view 
is  to  limit  and  qualify  the  powers  of  government,  by  excepting  out  of  the 
grant  of  power  those  cases  in  which  the  government  ought  not  to  act,  or 
to  act  only  in  a  particular  mode.  They  point  these  exceptions  sometimes 
against  the  abuse  of  the  executive  power,  sometimes  against  the  legislative, 

1  The  Congressional  Register,  Vol.  i.  p.  426. 


Relation 


GOVERNMENT   SET    UP:    AMENDMENTS  325 

and,    in   some    cases,    against    the    community    itself;   or,    in    other    words, 
against  the  majority  in  favor  of  the  minority."  * 

Without   enumerating   the   amendments   which   Mr.    Madison   proposed, 
which,  for  the  most  part  were  adopted  in  substance,  if  not  in  form,  there 
is  one  matter  upon  which  his  exact  language  should  be  quoted,  as  it  deals 
with  the  relation  of  the  States  to  the  Union  and  the  powers  which  they   ^felSta 
apparently  thought  they  reserved  from  the  grant  to  the  general  government.    unJon 
On  this  point  Mr.  Madison  said : 

"  I  find,  from  looking  into  the  amendments  proposed  by  the  state  con- 
ventions, that  several  are  particularly  anxious  that  it  should  be  declared 
in  the  constitution,  that  the  powers  not  therein  delegated,  should  be 
reserved  to  the  several  states.  Perhaps  words  which  may  define  this  more 
precisely,  than  the  whole  of  the  instrument  now  does,  may  be  considered 
as  superfluous.  I  admit  they  may  be  deemed  unnecessary ;  but  there  can 
be  no  harm  in  making  such  a  declaration,  if  gentlemen  will  allow  that  the 
fact  is  as  stated,  I  am  sure  I  understand  it  so,  and  do  therefore  pro- 
pose it."  2 

After  some  discussion  Mr.  Madison's  motion  was  referred  to  a  Com- 
mittee of  the  Whole  on  the  state  of  the  Union.  On  July  21st  when  he 
brought  the  question  of  amendments  again  to  the  attention  of  the  House, 
it  was  ordered  after  debate,  "  that  Mr.  Madison's  motion,  stating  certain 
specific  amendments,  proper  to  be  proposed  by  congress  to  the  legislatures 
of  the  states,  to  become,  if  ratified  by  three-fourths  thereof,  part  of  the 
constitution  of  the  United  States,  together  with  the  amendments  to  the  said 
constitution  as  proposed  by  the  several  states,  to  be  referred  to  a  committee, 
to  consist  of  a  member  from  each  state,  with  instruction  to  take  the  subject 
of  amendments  to  the  constitution  of  the  United  States,  generally  into  their 
consideration,  and  to  report  thereupon  to  the  house."  3 

On  July  27th  the  Committee  reported,  and  the  report  was  ordered  to  lie 
on  the  table.  On  August  13th  the  House  took  up  the  report  of  the  Com- 
mittee and  debated  it  continuously,  during  the  course  of  which  other  amend- 
ments were  proposed.  On  August  22nd  an  agreement  was  reached  upon 
the  amendments  to  be  submitted,  and  on  the  24th,  a  committee  appointed  for 
rearrangement  of  the  articles  of  amendments  to  the  Constitution  as  agreed 
to  on  the  21st,  presented  its  report  with  the  following  resolution  to  be  pre- 
fixed to  them: 

Resolved,  by  the  senate  and  house  of  representatives  of  the  United 
States  of  America  in  Congress  assembled,  two  thirds  of  both  houses  deem- 
ing it  necessary,  that  the  following  articles  be  proposed  to  the  legislatures 

1  Ibid.,  pp.  430-1. 

'  Ibid.,  p.  436. 
'Ibid.,  Vol.  ii,  p.  111. 


326  THE    UNITED    STATES:   A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

of  the  several  states  as  amendments  to  the  constitution  of  the  United  States, 
all  of  any  of  which  articles,  when  ratified  by  three  fourths  of  the  said 
legislatures,  to  be  valid  to  all  intents  and  purposes  as  part  of  the  said 
constitution.1 

Bffo?ement9  The  House  immediately  transmitted  the  proposed  amendments,  seven- 

teen in  number,  to  the  Senate  for  their  consideration,  where  they  were 
received  on  the  25th,  and  considered  on  September  2d,  4th,  7th,  and  25th. 
The  Senate  as  the  result  of  conference  concurred  in  the  amendments  pro- 
posed by  the  House  of  Representatives  to  the  amendments  of  the  Senate, 
and  the  following  twelve  were  transmitted  by  the  President  of  the  United 
States  to  the  Executives  of  the  eleven  States  which  had  ratified  the  Consti- 
tution, and  likewise  to  those  of  the  States  of  Rhode  Island  and  North 
Carolina. 

Article  the  first.  .  .  .  After  the  first  enumeration  required  by  the  first 
Article  of  the  Constitution,  there  shall  be  one  Representative  for  every  thirty 
thousand,  until  the  number  shall  amount  to  one  hundred,  after  which,  the  pro- 
portion shall  be  so  regulated  by  Congress,  that  there  shall  not  be  less  than  one 
hundred  Representatives,  nor  less  than  one  Representative  for  every  forty 
thousand  persons,  until  the  number  of  Representatives  shall  amount  to  two 
hundred,  after  which  the  proportion  shall  be  so  regulated  by  Congress,  that 
there  shall  not  be  less  than  two  hundred  Representatives,  nor  more  than  one 
Representative  for  every  fifty  thousand  persons. 

Article  the  second.  .  .  .  No  law,  varying  the  compensation  for  the  serv- 
ices of  the  Senators  and  Representatives,  shall  take  effect,  until  an  election  of 
Representatives  shall  have  intervened. 

Article  the  third.  .  .  .  Congress  shall  make  no  law  respecting  an  estab- 
lishment of  religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech,  or  of  the  press ;  or  the  right  of  the  people  peaceably  to 
assemble,  and  to  petition  the  Government  for  a  redress  of  grievances. 

Article  the  fourth.  ...  A  well  regulated  Militia,  being  necessary  to  the 
security  of  a  free  State,  the  right  of  the  people  to  keep  and  bear  Arms,  shall 
not  be  infringed. 

Article  the  fifth.  .  .  .  No  Soldier  shall,  in  time  of  peace  be  quartered  in 
any  house,  without  the  consent  of  the  Owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 

Article  the  sixth.  .  .  .  The  right  of  the  people  to  be  secure  in  their  per- 
sons, houses,  papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  Warrants  shall  issue,  but  upon  probable  cause, 
supported  by  Oath  or  affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized. 

Article  the  seventh.  .  .  .  No  person  shall  be  held  to  answer  for  a  capital, 
or  otherwise  infamous  crime,  unless  on  a  presentment  or  indictment  of  a  Grand 
Jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  Militia,  when 
in  actual  service  in  time  of  War  or  public  danger;  nor  shall  any  person  be 
subject  for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb;  nor 
shall  be  compelled  in  any  criminal  case  to  be  a  witness  against  himself,  nor  be 

1  Congressional  Register,  Vol.  II,  p.  259. 


GOVERNMENT   SET    UP:    AMENDMENTS  327 

deprived  of  life,  liberty,  or  property,  without  due  process  of  law ;  nor  shall 
private  property  be  taken  for  public  use,  without  just  compensation. 

Article  the  eighth.  ...  In  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  of  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law,  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation;  to  be  confronted  with  the  witnesses  against  him;  to 
have  compulsory  process  for  obtaining  witnesses  in  his  favor;  and  to  have  the 
Assistance  of  Counsel  for  his  defence. 

Article  the  ninth.  ...  In  Suits  at  common  law,  where  the  value  in  con- 
troversy shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury,  shall  be  otherwise  re-examined,  in  any  Court  of 
the  United  States,  than  according  to  the  rules  of  the  common  law. 

Article  the  tenth.  .  .  .  Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Article  the  eleventh.  .  .  .  The  enumeration  in  the  Constitution,  of  certain 
rights,  shall  not  be  construed  to  deny  or  disparage  others  retained  by  the  people. 

Article  the  twelfth.  .  .  .  The  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people.1 

Mr.  Madison,  who  is  to  be  regarded  not  merely  as  the  father  of  the  Con- 
stitution but  as  the  initiator  of  the  amendments  to  that  instrument,  had  pro- 
posed that  the  amendments  themselves  should  not  only  modify  the  sense  of 
the  Constitution,  but  that  they  should  be  incorporated  in  the  text  in  lieu  of 
the  rejected  matter.  But  fortunately  the  view  prevailed  that  the  text  of 
the  instrument  should  be  preserved  inviolate,  and  that  the  amendments,  in 
the  form  of  articles,  should  be  added  to  its  text.  It  is  perhaps  also  of  inter- 
est to  add  that  the  amendments,  reasonable  and  acceptable  in  themselves, 
proposed  by  the  opponents  of  the  Constitution  but  rejected  by  the  majority 
of  the  Convention  of  Pennsylvania  called  to  consider  that  instrument,  are 
alleged  to  have  been  the  source  of  Mr.  Madison's  propositions.2 

Of  the  twelve  amendments  submitted  to  the  States,  the  first  two  failed 
for  lack  of  the  required  majority,  but  the  remaining  ten  were  adopted  and 
form  the  first  ten  amendments  to  the  Constitution  of  the  United  States. 
Submitted  as  they  were  by  the  first  Congress  under  the  Constitution  and 
adopted  within  two  years  thereafter,  they  can  be  considered  as  the  authorita- 
tive and  contemporaneous  interpretation  of  the  States  of  the  Union  in  the 
matter  of  their  relation  to  the  government  of  the  Union,  which  the  States 
had  created  by  vesting  it  with  certain  powers  whereof  they  divested  them- 

1  Documentary  History,  Vol.  II,  pp.  321-4. 

"  They  are  fifteen  in  number,  and  are  remarkable  as  containing  the  substance  of  the  ten 
amendments  afterwards  added  to  the  Constitution.  Similarity  so  marked  can  not  be  acci- 
dental. There  is  much  reason,  therefore,  to  believe  that  when  Mr.  Madison,  in  1789, 
drew  up  the  amendments  for  the  House  of  Representatives,  he  made  use  of  those  offered 
by  the  minority  of  the  Convention  of  Pennsylvania.  See  Pennsylvania  and  the  Federal  Con- 
stitution. McMaster  and  Stone  ed.,  1888,  p.  19.  The  text  of  the  amendments  is  to  be  found 
on  pp.  321-3  of  that  volume. 


328  THE   UNITED    STATES:   A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

Deiee"cd0t  selves.    The  ten  amendments  are  in  their  entirety  limitations  upon  the  gen- 

to^heStates         era^  power  of  the  Government.     The  ninth  and  tenth  cannot  be  too  often 

pondered  by  those  who  would  understand  the  nature  of  the  more  perfect 

Union  created  by  the  Constitution,  and  who  would  like  to  see  something  of 

the  kind  obtain  in  the  society  of  nations.    They  are  therefore  quoted : 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be  con- 
strued to  deny  or  disparage  others  retained  by  the  people.     (Article  IX.) 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to 
the  people.     (Article  X.) 

It  is  believed  that  there  would  have  been  little  opposition  within  and 
without  the  Federal  Convention  to  a  bill  of  rights  composed  of  the  matters 
included  within  the  first  ten  amendments,  which  are  themselves  in  the  nature 
of  a  bill  of  rights.  It  is  not  too  much  to  say  that,  if  such  a  course  had 
been  taken,  opposition  to  the  Constitution  would  have  been  largely  dis- 
armed, if  not  rendered  wholly  powerless.  The  truth  of  the  matter  seems 
to  be  that,  as  always  happens  in  an  international  conference,  the  discussions 
moved  in  a  leisurely  way  at  the  beginning;  that,  in  the  course  of  its  sessions, 
propositions  were  made  and  discussed  in  such  numbers  as  to  impede  prog- 
ress; and  that,  in  the  closing  days  of  the  session,  the  members,  in  sheer 
desperation  to  do  something  to  justify  their  calling  and  to  adjourn  within 
a  reasonable  period,  became  excited,  not  to  say  irascible ;  and  that  they  re- 
jected measures  which  they  would  otherwise  have  adopted,  on  the  ground  that 
they  were  unnecessary  or  that  their  adoption  would  unduly  prolong  the 
session,  notwithstanding  the  fact  that,  if  unnecessary,  it  would  not  hurt  to 
adopt  them,  especially  as  their  adoption  would  tranquilize  the  minds  of 
their  proposers. 

Mr.  Mason's  proposal  for  a  bill  of  rights, — and  perhaps  as  the  framer 
of  the  Virginian  Bill  of  Rights  he  appeared  to  his  colleagues  a  trifle 
obsessed  with  its  importance, — received  scant  consideration,  made,  as  it  was, 
in  the  closing  days.  On  September  12th  Mr.  Mason  stated  that  "  he  wished 
the  plan  had  been  prefaced  with  a  Bill  of  Rights,  &  would  second  a  Motion 
if  made  for  the  purpose — It  would  give  great  quiet  to  the  people;  and  with 
the  aid  of  the  State  declarations,  a  bill  might  be  prepared  in  a  few  hours."  * 
The  Convention,  however,  made  short  shrift  of  the  proposal,  and  after 
other  observations  in  the  nature  of  remarks,  the  proposal  made  by  Mr. 
Gerry  of  Massachusetts  and  seconded  by  Mr.  Mason  was  negatived  by  ten 
of  the  eleven  States,  with  Massachusetts  abstaining. 

The  spirit  of  the  Convention  at  this  time  is  perhaps  best  shown  by  the 

1  Documentary  History,  Vol.  Ill,  p.  734. 


GOVERNMENT    SET   UP:    AMENDMENTS 


329 


action  of  the  Convention  on  the  15th,  when  a  proposal  was  made  that  an 
address  should  be  prepared  to  the  people  to  accompany  the  Constitution, 
inasmuch,  as  stated  by  its  proposer,  as  "  the  people  had  been  accustomed  to 
such  on  great  occasions,  and  would  expect  it  on  this."  To  this  proposal 
Mr.  Rutledge  of  South  Carolina  objected,  "  on  account  of  the  delay  it  would 
produce  and  the  impropriety  of  addressing  the  people  before  it  was  known 
whether  Congress  would  approve  and  support  the  plan."  The  motion  was 
rejected  by  a  vote  of  six  States  to  four,  with  North  Carolina  abstaining.1 

Many  years  after  the  adjournment  of  the  Convention,  Mr.  Madison, 
speaking  of  the  method  of  electing  the  President,  said,  in  a  letter  dated 
August  23,  1823,  addressed  to  Mr.  George  Hay: 

As  the  final  arrangement  of  it  took  place  in  the  latter  stage  of  the 
Session,  it  was  not  exempt  from  a  degree  of  the  hurrying  influence  pro- 
duced by  fatigue  and  impatience  in  all  such  Bodies,  tho'  the  degree  was 
much  less  than  usually  prevails  in  them.2 

The  general  view  on  the  subject  of  a  bill  of  rights,  at  least  the  view  of  the 
moderate  reformers,  is  best  expressed  by  Washington  in  a  letter  to 
Lafayette,  dated  April  28,  1788,  in  which  he  says: 

There  was  not  a  member  of  the  convention,  I  believe,  who  had  the  least 
objection  to  what  is  contended  for  by  the  advocates  for  a  Bill  of  Rights 
and  Trial  by  Jury.  The  first,  where  the  people  evidently  retained  every 
thing,  which  they  did  not  in  express  terms  give  up,  was  considered  nuga- 
tory .  .  .  and,  as  to  the  second,  it  was  only  the  difficulty  of  establishing 
a  mode,  which  should  not  interfere  with  the  fixed  modes  of  any  of  the 
States,  that  induced  the  convention  to  leave  it  as  a  matter  of  future 
adjustment.3 

Writing  many  years  after  the  event,  Mr.  Madison  himself  used  the  following 
language  in  a  letter  dated  November  27,  1830,  addressed  to  Mr.  Andrew 
Stevenson,  which  states  better  than  any  amount  of  argument  Mr.  Mason's 
case: 

Besides  the  restrictive  &  explanatory  amendments  to  the  text  of  the 
Constitution  it  may  be  observed,  that  a  long  list  was  premised  under  the 
name  and  in  the  nature  of  "Declarations  of  Rights";  all  of  them  indicat- 
ing a  jealousy  of  the  federal  powers,  and  an  anxiety  to  multiply  securities 
against  a  constructive  enlargement  of  them.  But  the  appeal  is  more  par- 
ticularly made  to  the  number  &  nature  of  the  amendments  proposed  to  be 
made  specific  &  integral  parts  of  the  Constitutional  text. 

No  less  than  seven  States,  it  appears,  concurred  in  adding  to  their  rati- 

1  Ibid.,  Vol.  iii,  p.  749. 

2  The  Writings  of  James  Madison,  Hunt  ed.,  Vol.  ix,  p.  147. 

8  Ford,  The  Writings  of  George  Washington,  Vol.  ii,  p.  256;  Sparks,  Vol.  ix,  pp.  357-8. 


330  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

fications  a  series  of  amendments,  wch.  they  deemed  requisite.  Of  these 
amendments,  nine  were  proposed  by  the  Convention  of  Massachusetts,  five 
by  that  of  S.  Carolina,  twelve  by  that  of  N.  Hampshire,  twenty  by  that  of 
Virginia,  thirty-three  by  that  of  N.  York,  twenty-six  by  that  of  N.  Carolina, 
twenty-one  by  that  of  R.  Island. 

Here  are  a  majority  of  the  States,  proposing  amendments,  in  one 
instance  thirty-three  by  a  single  State ;  all  of  them  intended  to  circum- 
scribe the  powers  granted  to  the  General  Government,  by  explanations, 
restrictions  or  prohibitions.1 

value  of  Experience  has  shown  that  the  amendments  to  the  Constitution,  in  sub- 

Amendments  stance  though  not  in  form  a  Bill  of  Rights,  were  not  useless.     They  have 

been  frequently  invoked  on  appropriate  occasions,  and  they  have  been  the 
subject  of  many  appeals  to  the  Supreme  Court.  They  are,  we  believe  uni- 
versal truths  and  therefore  susceptible  of  universal  application;  and  indeed 
but  yesterday  they  were  weighed  and  found  not  wanting  by  a  distinguished 
Secretary  of  War,  who  restated  them  with  slight  changes,  and  additions, 
and  prescribed  them  for  the  government  of  the  Philippines  in  1900.  Thus 
Mr.  Root  said  in  his  instructions  approved  by  the  President  on  April 
7,  1900: 

It  is  evident  that  the  most  enlightened  thought  of  the  Philippine 
Islands  fully  appreciates  the  importance  of  these  principles  and  rules,  and 
they  will  inevitably  within  a  short  time  command  universal  assent.  Upon 
every  division  and  branch  of  the  government  of  the  Philippines,  therefore, 
must  be  imposed  these  inviolable  rules : 

That  no  person  shall  be  deprived  of  life,  liberty,  or  property  without 
due  process  of  law ;  that  private  property  shall  not  be  taken  for  public  use 
without  just  compensation;  that  in  all  criminal  prosecutions  the  accused 
shall  enjoy  the  right  to  a  speedy  and  public  trial,  to  be  informed  of  the 
nature  and  cause  of  the  accusation,  to  be  confronted  with  the  witnesses 
against  him,  to  have  compulsory  process  for  obtaining  witnesses  in  his 
favor,  and  to  have  the  assistance  of  counsel  for  his  defense;  that  excessive 
bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and 
unusual  punishment  inflicted ;  that  no  person  shall  be  put  twice  in  jeopardy 
for  the  same  offense,  or  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself ;  that  the  right  to  be  secure  against  unreasonable  searches 
and  seizures  shall  not  be  violated ;  that  neither  slavery  nor  involuntary 
servitude  shall  exist  except  as  a  punishment  for  crime;  that  no  bill  of 
attainder  or  ex  post  facto  law  shall  be  passed ;  that  no  law  shall  be  passed 
abridging  the  freedom  of  speech  or  of  the  press,  or  the  rights  of  the  people 
peaceably  to  assemble  and  petition  the  Government  for  a  redress  of 
grievances ;  that  no  law  shall  be  made  respecting  an  establishment  of 
religion  or  prohibiting  the  free  exercise  thereof,  and  that  the  free  exercise 
and  enjoyment  of  religious  profession  and  worship  without  discrimination 
or  preference  shall  forever  be  allowed.2 

1  Writings  of  Madison.  Vol.  ix,  pp.  421-2. 

2  Elihu  Root,  Th-e  Military  and  Colonial  Policy  of  the  United  States,  Robert  Bacon  and 
J.  B.  Scott  ed.,  pp.  291-2. 


GOVERNMENT  SET  UP:  AMENDMENTS 


331 


And  in  the  case  of  Kepncr  v.  United  States  (195  U.  S.,  100,  123-4), 
decided  by  the  Supreme  Court  in  1903,  Mr.  Justice  Day,  speaking  of  these 
instructions,  thus  comments  upon  them : 

These  words  are  not  strange  to  the  American  lawyer  or  student  of  con- 
stitutional history.  They  are  the  familiar  language  of  the  Bill  of  Rights, 
slightly  changed  in  form,  but  not  in  substance,  as  found  in  the  first  nine 
amendments  to  the  Constitution  of  the  United  States,  with  the  omission  of 
the  provision  preserving  the  right  to  trial  by  jury  and  the  right  of  the 
people  to  bear  arms,  and  adding  the  prohibition  of  the  Thirteenth  Amend- 
ment against  slavery  or  involuntary  servitude  except  as  a  punishment  for 
crime,  and  that  of  Art.  1,  §  9,  to  the  passage  of  bills  of  attainder  and 
ex  post  facto  laws.  These  principles  were  not  taken  from  the  Spanish  law ; 
they  were  carefully  collated  from  our  own  Constitution,  and  embody 
almost  verbatim  the  safeguards  of  that  instrument  for  the  protection  of  life 
and  liberty. 


In  interpreting  the  Constitution  it  must  always  be  borne  in  mind  that,  |ta,J*  ti 
while  the  intent  of  the  framers  of  that  instrument  is  important,  as  showing 
the  meaning  which  they  ascribed  to  it,  the  greatest  weight  must  be  given  to 
the  proceedings  in  the  State  Conventions  ratifying  the  Constitution  and  to 
the  first  ten  amendments  which  are,  as  already  stated,  in  the  nature  of  an 
authoritative  and  contemporaneous  interpretation  put  upon  the  Constitution 
by  three-fourths  and  more  of  the  States  in  the  exercise  of  their  rights  under 
the  Constitution.  It  is  believed  that  these  principles  of  interpretation,  con- 
stituting as  they  do  a  perfect  canon  of  construction,  have  never  been  better 
stated  than  by  Mr.  Madison,  who  would  have  been  supposed  to  be  inclined 
to  favor  the  views  of  the  framers,  because  of  his  membership  in  the  Con- 
vention and  his  authorship  of  the  Notes  in  which  their  views  are  preserved, 
to  the  detriment  of  the  authority  of  the  State  conventions.  Thus,  Mr. 
Madison  said: 


The   First  Ten 
Amendments 


But,  after  all,  whatever  veneration  might  be  entertained  for  the  body 
of  men  who  formed  our  Constitution,  the  sense  of  that  body  could  never 
be  regarded  as  the  oracular  guide  in  expounding  the  Constitution.  As  the 
instrument  came  from  them  it  was  nothing  more  than  the  draft  of  a  plan, 
nothing  but  a  dead  letter,  until  life  and  validity  were  breathed  into  it  by 
the  voice  of  the  people,  speaking  through  the  several  State  Conventions. 
If  we  were  to  look,  therefore,  for  the  meaning  of  the  instrument  beyond 
the  face  of  the  instrument,  we  must  look  for  it,  not  in  the  General  Conven- 
tion, which  proposed,  but  in  the  State  Conventions,  which  accepted  and 
ratified  the  Constitution.1 

As  a  guide  in  expounding  and  applying  the  provisions  of  the  Constitu- 
tion, the  debates  and  incidental  decisions  of  the  Convention  can  have  no 
authoritative  character.     However  desirable  it  be  that  they  should  be  pre- 

1  James   Madison  in  the  House  of   Representatives.     Annals  of  Congress,  Fourth  Con- 
gress, First  Session,  p.  776. 


332  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

served  as  a  gratification  to  the  laudable  curiosity  felt  by  every  people  to 
trace  the  origin  and  progress  cf  their  political  Institutions,  &  as  a  source 
perhaps  of  some  lights  on  the  Science  of  Gov',  the  legitimate  meaning  of 
the  Instrument  must  be  derived  from  the  text  itself;  or  if  a  key  is  to  be 
sought  elsewhere,  it  must  be  not  in  the  opinions  or  intentions  of  the  Body 
which  planned  &  proposed  the  Constitution,  but  in  the  sense  attached  to  it 
by  the  people  in  their  respective  State  Conventions  where  it  recd.  all  the 
Authority  which  it  possesses.1 

I  must  say  that  the  real  measure  of  the  powers  meant  to  be  granted  to 
Congress  by  the  Convention,  as  I  understood  and  believe,  is  to  be  sought 
in  the  specifications,  to  be  expounded  indeed  not  with  the  strictness  applied 
to  an  ordinary  statute  by  a  Court  of  Law ;  nor  on  the  other  hand  with  a 
latitude  that  under  the  name  of  means  for  carrying  into  execution  a  limited 
Government,  would  transform  it  into  a  Government  without  limits.2 

And  finally,  in  speaking  of  the  difference  of  opinion  between  Colonel 
Hamilton,  on  the  one  side,  and  himself,  on  the  other,  Mr.  Madison  said,  as 
reported  by  Mr.  N.  P.  Trist  in  his  Memoranda,  under  date  of  September 
27,  1834,  but  two  years  before  Mr.  Madison's  death: 

In  a  word,  the  divergence  between  us  took  place — from  his  wishing  to 
administration,  or  rather  to  administer  the  Government  (these  were  Mr. 
M.'s  very  words),  into  what  he  thought  it  ought  to  be;  while,  on  my  part, 
I  endeavored  to  make  it  conform  to  the  Constitution  as  understood  by  the 
Convention  that  produced  and  recommended  it,  and  particularly  by  the 
State  conventions  that  adopted  it.3 

oi*rcUomls  Perhaps  the  difficulties  of  forming  the  more  perfect  Union  under  the 

Constitution  and  of  the  influence  which  it  was  foreseen  it  might  have  upon 
the  society  of  nations  have  never  been  better  stated  than  by  the  two  great 
members  of  the  Convention,  whose  presence  alone  would  have  rendered  that 
conference  of  the  States  illustrious.  Thus,  George  Washington  said  in 
a  letter  dated  November  16,   1787,  addressed  to  Mrs.  Macaulay  Graham: 

The  various  and  opposite  interests  which  were  to  be  conciliated,  the 
local  prejudices  which  were  to  be  subdued,  the  diversity  of  opinions  and 
sentiments  which  were  to  be  reconciled,  and,  in  fine,  the  sacrifices  which 
were  necessary  to  be  made  on  all  sides  for  the  general  welfare,  combined 
to  make  it  a  work  of  so  intricate  and  difficult  a  nature,  that  1  think  it  is 
much  to  be  wondered  at,  that  any  thing  could  have  been  produced  with  such 
unanimity  as  the  constitution  proposed.4 

Thus  Benjamin  Franklin  wrote  in  a  letter  to  Mr.  Grand  dated  October 
22,  1787: 

1  James  Madison  to  Thomas  Ritchie,  September  IS,  1821.     Writings  of  Madison,  Vol.  ix, 
pp.  71-2.  note. 

2  James  Madison  to  M.  L.  Hurlbert,  May,  1830.     Ibid.,  pp.  371-2. 
8  H.  S.  Randall,  Life  of  Thomas  Jefferson,  Vol.  iii,  p.  595. 

1  Sparks,  The  Writings  of  Washington,  Vol.  ix,  p.  283. 


GOVERNMENT   SET    UP:    AMENDMENTS  333 

If  it  succeeds,  I  do  not  see  why  you  might  not  in  Europe  carry  the 
Project  of  good  Henry  the  4th  into  Execution,  by  forming  a  Federal  Union 
and  One  Grand  Republick  of  all  its  different  States  &  Kingdoms,  by  means 
of  a  like  Convention,  for  we  had  many  Interests  to  reconcile.1 

In  an  address  on  the  United  States  Supreme  Court  and  the  sovereignty 
of  the  people,  delivered  in  1890,  the  late  Mr.  Edward  John  Phelps,  a  dis- 
tinguished lawyer  of  the  United  States,  its  Minister  Plenipotentiary  and 
Envoy  Extraordinary  to  Great  Britain  and  leading  counsel  before  the 
Behring  Sea  Commission  of  1893,  finely  said :  "  American  experience  has 
made  it  an  axiom  in  political  science  that  no  written  constitution  of  govern- 
ment can  hope  to  stand  without  a  paramount  and  independent  tribunal 
to  determine  its  construction  and  to  enforce  its  precepts  in  the  last  resort. 
This  is  the  great  and  foremost  duty  cast  by  the  Constitution,  for  the  sake 
of  the  Constitution,  upon  the  Supreme  Court  of  the  United  States."  2 

The  construction  placed  by  the  States  of  the  Union  upon  the  Constitu- 
tion would  seem  to  indicate  to  the  unprejudiced  mind  that  at  that  time  they 
regarded  themselves  as  States,  not  provinces,  entering  into  union,  granting 
all  powers  to  the  Union  of  their  creation  which  it  could  exercise,  and  reserv- 
ing to  themselves  the  exercise  of  powers  which  they  had  not  directly  granted 
or  which  they  had  not  granted  by  necessary  implication,  or  whose  exercise 
by  themselves  they  had  not  renounced  in  the  common  good.  The  Supreme 
Court  of  the  United  States,  which  is  the  "  paramount  and  independent  tri- 
bunal," to  quote  Mr.  Phelps'  language,  "  to  determine  its  construction,"  has 
repeatedly,  in  the  hundred  years  and  more  following  the  institution  of  the 
Government  under  the  Constitution,  been  called  upon  to  interpret  that 
charter  of  government  in  cases  presented  to  it  and  properly  involving  its 
provisions,  and  it  has,  from  its  first  to  its  last  decision,  spoken  the  uniform 
language  of  statesman  and  of  jurist,  irrespective  of  section  or  party.  Thus, 
Mr.  Justice  Iredell  said,  in  his  dissenting  opinion  in  the  case  of  Chisholm  The 

Sovereignty 

v.  Georgia,  (2  Dallas,  419,  435),  decided  in  1793,  an  opinion  approved  by   °fthe 
the  11th  amendment  to  the  Constitution  of  the  United  States: 

Every  State  in  the  Union,  in  every  instance  where  its  sovereignty  has 
not  been  delegated  to  the  United  States,  I  consider  to  be  as  compleatly 
sovereign,  as  the  United  States  are  in  respect  to  the  powers  surrendered. 
The  United  States  are  sovereign  as  to  all  the  powers  of  Government 
actually  surrendered:  Each  State  in  the  Union  is  sovereign  as  to  all  the 
powers  reserved.  It  must  necessarily  be  so,  because  the  United  States  have 
no  claim  to  any  authority  but  such  as  the  States  have  surrendered  to  them: 
Of  course  the  part  not  surrendered  must  remain  as  it  did  before. 

1  A.  H.  Smyth,   The   Writings  of  Benjamin  Franklin,  Vol.  ix,  p.  619. 
3  Phelps,  Orations  and  Essays,  pp.  58-9. 


334  THE    UNITED    STATES  :    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

To  the  same  effect,  Mr.  Justice  Story  said,  in  delivering  the  opinion  of  the 
Supreme  Court  in  Martin  v.  Hunter  (1  Wheaton,  304,  325-6),  decided  in 
1816: 

On  the  other  hand,  it  is  perfectly  clear  that  the  sovereign  powers  vested 
in  the  state  governments,  by  their  respective  constitutions,  remained  unaltered 
and  unimpaired,  except  so  far  as  they  were  granted  to  the  government  of 
the  United  States. 

These  deductions  do  not  rest  upon  general  reasoning,  plain  and  obvious 
as  they  seem  to  be.  They  have  been  positively  recognised  by  one  of  the 
articles  in  amendment  of  the  constitution,  which  declares,  that  "  the  powers 
not  delegated  to  the  United  States  by  the  constitution,  nor  prohibited  by  it  to 
the  states,  are  reserved  to  the  states  respectively,  or  to  the  people." 

The  government,  then,  of  the  United  States  can  claim  no  powers  which 
are  not  granted  to  it  by  the  constitution,  and  the  powers  actually  granted, 
must  be  such  as  are  expressly  given,  or  given  by  necessary  implication. 

The  great  Chief  Justice  of  the  United  States,  John  Marshall,  said,  in  deliver- 
ing the  unanimous  opinion  of  his  brethren  of  the  court  in  McCulloch  v.  Mary- 
land (4  Wheaton,  316,  403,  410),  decided  in  1819: 

No  political  dreamer  was  ever  wild  enough  to  think  of  breaking  down 
the  lines  which  separate  the  States,  and  of  compounding  the  American  peo- 
Tf%m"rt\^L  pie  into  one  common  mass.     Of  consequence,  when  they  act,  they  act   in 

Powers  their  States.  .   .    . 

In  America,  the  powers  of  sovereignty  are  divided  between  the  govern- 
ment of  the  Union,  and  those  of  the  States.  They  are  each  sovereign,  with 
respect  to  the  objects  committed  to  it,  and  neither  sovereign  with  respect  to 
the  objects  committed  to  the  other. 

In  a  very  much  later  case,  when  the  Civil  War  might  have  seemed  to  the 
partisan  to  have  changed  the  relation  of  the  States  to  the  Union  and  of  the 
Union  to  the  States,  Mr.  Chief  Justice  Chase  said,  in  delivering  the  opinion 
of  the  court  in  Texas  v.  White  (7  Wallace,  700,  725),  decided  in  1868,  and 
involving  this  very  relationship : 

Under  the  Articles  of  Confederation  each  State  retained  its  sovereignty, 
freedom,  and  independence,  and  every  power,  jurisdiction,  and  right  not  ex- 
pressly delegated  to  the  United  States.  Under  the  Constitution,  though  the 
powers  of  the  States  were  much  restricted,  still,  all  powers  not  delegated 
to  the  United  States,  nor  prohibited  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people.  And  we  have  already  had  occasion  to 
remark  at  this  term,  that  "  the  people  of  each  State  compose  a  State,  having 
its  own  government,  and  endowed  with  all  the  functions  essential  to  sepa- 
rate and  independent  existence,"  and  that  "  without  the  States  in  union, 
there  could  be  no  such  political  body  as  the  United  States."  Not  only, 
therefore,  can  there  be  no  loss  of  separate  and  independent  autonomy  to 
the  States,  through  their  union  under  the  Constitution,  but  it  may  be  not 
unreasonably  said  that  the  preservation  of  the  States,  and  the  maintenance 
of  their  governments,  are  as  much  within  the  design  and  care  of  the  Con- 
stitution as  the  preservation  of  the  Union  and  the  maintenance  of  the  Na- 


GOVERNMENT   SET   UP:    AMENDMENTS  335 

tional  Government.    The  Constitution,  in  all  its  provisions,  looks  to  an  inde- 
structible Union,  composed  of  indestructible  States. 

Two  years  later,  in  a  case  involving  an  act  of  Congress  in  excess  of  the  Con- 
stitutional grant  of  power,  affecting  an  official  of  one  of  the  States  of  the 
Union,  and  therefore  the  State,  Mr.  Justice  Nelson,  speaking  for  the  court, 
said,  in  Collector  v.  Day  (11  Wallace,  113,  124),  decided  in  1870: 

The  general  government,  and  the  States,  although  both  exist  within  the 
same  territorial  limits,  are  separate  and  distinct  sovereignties,  acting  sepa- 
rately and  independently  of  each  other,  within  their  respective  spheres.  The 
former  in  its  appropriate  sphere  is  supreme;  but  the  States  within  the  limits 
of  their  powers  not  granted,  or,  in  the  language  of  the  tenth  amendment, 
"  reserved,"  are  as  independent  of  the  general  government  as  that  govern- 
ment within  its  sphere  is  independent  of  the  States. 

And  finally,  Mr.  Justice  Brewer  said  more  recently,  in  delivering  the  opinion 
of  the  court  in  South  Carolina  v.  United  States  (199  U.  S.,  437,  448),  de- 
cided in  1905 : 

We  have  in  this  Republic  a  dual  system  of  government,  National  and 
state,  each  operating  within  the  same  territory  and  upon  the  same  persons ; 
and  yet  working  without  collision,  because  their  functions  are  different. 
There  are  certain  matters  over  which  the  National  Government  has  absolute 
control  and  no  action  of  the  State  can  interfere  therewith,  and  there  are 
others  in  which  the  State  is  supreme,  and  in  respect  to  them  the  National 
Government  is  powerless.  To  preserve  the  even  balance  between  these  two 
governments  and  hold  each  in  its  separate  sphere  is  the  peculiar  duty  of  all 
courts,  preeminently  of  this — a  duty  oftentimes  of  great  delicacy  and  diffi- 
culty. 

It  is  believed  that  the  views  of  accredited  publicists,  and  decisions  of  the 
Supreme  Court,  have  been  but  as  a  gloss  upon  the  views  of  Mr.  Madison, 
expressed  in  a  letter  to  Robert  Y.  Hayne,  United  States  Senator  from  South 
Carolina,  taking  issue  with  the  theory  of  the  Constitution  propounded  by  that 
gentleman. 

In  the  draft  of  this  admirable  letter  dated  April  3/4,  1830,  Mr.  Madison, 
who  would  doubtless  be  called  the  Father  of  the  Constitution  if  his  modesty 
had  not  forbidden  it,1  who  was,  in  any  event,  the  best  informed  delegate  in 
the  Convention,  and  who  afterward  became  a  member  of  the  Congress,  Sec- 
retary of  State,  and  President  of  the  United  States  under  the  Constitution, 
wrote : 

It  appears  to  me  that  in  deciding  on  the  character  of  the  Constitution  of 
the  U.   S.  it  is  not  sufficiently  kept  in  view  that  being  an  unprecedented 

'"Your  letter  of  the  18th  Ult.  was  duly  received.  You  give  me  a  credit  to  which  I 
have  no  claim,  in  calling  me  '  the  writer  of  the  Constitution  of  the  U.  S.'  This  was  not, 
like  the  fabled  Goddess  of  Wisdom,  the  offspring  of  a  single  brain.  It  ought  to  be  regarded 
as  the  work  of  many  heads  &  many  hands."  Extract  from  letter  of  James  Madison  to 
William  Cogswell,  March  10,  1834,  from  the  Madison  MSS.  in  the  Library  of  Congress. 
See  also,  The  Writings  of  James  Madison,  Hunt,  Editor,  Vol.  IX  (1910),  pp.  533-534. 


336  THE    UNITED   STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

modification  of  the  powers  of  Gov',  it  must  not  be  looked  at  thro'  the  refract- 
ing medium  either  of  a  consolidated  Government,  or  of  a  confederated  Gov*; 
that  being  essentially  different  from  both,  it  must  be  its  own  interpreter 
according  to  its  text  and  tlic  facts  of  the  case. 

Its  characteristic  peculiarities  are  1.  the  mode  of  its  formation.  2.  its 
division  of  the  supreme  powers  of  Gov1,  between  the  States  in  their  united 
capacity,  and  the  States  in  their  individual  capacities. 

1.  It  was  formed  not  by  the  Governments  of  the  States  as  the  Federal 
Government  superseded  by  it  was  formed;  nor  by  a  majority  of  the  people 
of  the  U.  S.  as  a  single  Community,  in  the  manner  of  a  consolidated  Gov- 
ernment. 

It  was  formed  by  the  States,  that  is  by  the  people  of  each  State,  acting 
in  their  highest  sovereign  capacity  thro'  Conventions  representing  them  in 
that  capacity,  in  like  manner  and  by  the  same  authority  as  the  State  Consti- 
tutions were  formed ;  with  this  characteristic  &  essential  difference  that  the 
Constitution  of  the  U.  S.  being  a  compact  among  the  States  that  is  the  people 
thereof  making  them  the  parties  to  the  compact  over  one  people  for  specified 
objects  can  not  be  revoked  or  changed  at  the  will  of  any  State  within  its 
limits  as  the  Constitution  of  a  State  may  be  changed  at  the  will  of  the  State, 
that  is  the  people  who  compose  the  State  &  are  the  parties  to  its  constitution 
&  retained  their  powers  over  it.  The  idea  of  a  compact  between  the  Gov- 
ernors &  the  Governed  was  exploded  with  the  Royal  doctrine  that  Govern- 
ment was  held  by  some  tenure  independent  of  the  people. 

The  Constitution  of  thei  U.  S.  is  therefore  within  its  prescribed  sphere  a 
Constitution  in  as  strict  a  sense  of  the  term  as  are  the  Constitutions  of  the 
individual  States,  within  their  respective  spheres. 

2.  And  that  it  divides  the  supreme  powers  of  Gov'  between  the  two 
Governments  is  seen  on  the  face  of  it ;  the  powers  of  war  &  taxation,  that 
is  of  the  sword  &  the  purse,  of  commerce  of  treaties  &c.  vested  in  the  Gov! 
of  the  U.  S.  being  of  as  high  a  character  as  any  of  the  powers  reserved  to 
the  State  Gov'5 

If  we  advert  to  the  Gov'  of  the  U.  S.  as  created  by  the  Constitution  it  is 
found  also  to  be  a  Gov'  in  as- strict  a  sense  of  the  term,  within  the  sphere  of 
its  powers,  as  the  Gov!s  created  by  the  Constitutions  of  the  States  are  within 
their  respective  spheres.  It  is  like  them  organized  into  a  Legislative,  Execu- 
tive &  Judicial  Dep'  It  has,  like  them,  acknowledged  cases  in  which  the 
powers  of  those  Departments  are  to  operate  and  the  operation  is  to  be  the 
same  in  both ;  that  is  directly  on  the  persons  &  things  submitted  to  their 
power.  The  concurrent  operation  in  certain  cases  is  one  of  the  features 
constituting  the  peculiarity  of  the  system. 

Between  these  two  Constitutional  Gov*s,  the  one  operating  in  all  the 
States,  the  others  operating,  in  each  respectively ;  with  the  aggregate  powers 
of  Govt  divided  between  them,  it  could  not  escape  attention,  that  contro- 
versies concerning  the  boundary  of  Jurisdiction  would  arise,  and  that  with- 
out some  adequate  provision  for  deciding  them,  conflicts  of  physical  force 
might  ensue.  A  political  system  that  does  not  provide  for  a  peaceable  & 
authoritative  termination  of  occurring  controversies,  can  be  but  the  name  & 
shadow  of  a  Gov'  the  very  object  and  end  of  a  real  Gov4-  being  the  substi- 
tution of  law  &  order  for  uncertainty  confusion  &  violence. 

That  a  final  decision  of  such  controversies,  if  left  to  each  of  13  State 
now  24  with  a  prospective  increase,  would  make  the  Constitution  &  laws  of 
the  U.  S.  different  in  different  States,  was  obvious ;  and  equally  obvious  that 


GOVERNMENT    SET    UP:    AMENDMENTS  337 

this  diversity  of  independent  decisions  must  disorganize  the  Government 
of  the  Union,  and  even  decompose  the  Union  itself. 

Against  such  fatal  consequences  the  Constitution  undertakes  to  guard 
1.  by  declaring  that  the  Constitution  &  laws  of  the  States  in  their  united 
capacity  shall  have  effect,  anything  in  the  Constitution  or  laws  of  any  State 
in  its  individual  capacity  to  the  contrary  notwithstanding,  by  giving  to  the 
Judicial  authority  of  the  U.  S.  an  appellate  supremacy  in  all  cases  arising 
under  the  Constitution ;  &  within  the  course  of  its  functions,  arrangements 
supposed  to  be  justified  by  the  necessity  of  the  case ;  and  by  the  agency  of 
the  people  &  Legislatures  of  the  States  in  electing  &  appointing  the  Func- 
tionaries of  the  Common  Gov'  whilst  no  corresponding  relation  existed  be- 
tween the  latter  and  the  Functionaries  of  the  States. 

2.  Should  these  provisions  be  found  notwithstanding  the  responsibility  of 
the  functionaries  of  the  Govt  of  the  U.  S.  to  the  Legislatures  &  people 
of  the  States  not  to  secure  the  State  Govt3  against  usurpations  of  the  Govt 
of  the  United  States  there  remains  within  the  purview  of  the  Const?  an 
impeachment  of  the  Executive  &  Judicial  Functionaries,  in  case  of  their 
participation  in  the  guilt,  the  prosecution  to  depend  on  the  Representatives 
of  the  people  in  one  branch,  and  the  trial  on  the  Representatives  of  the  States 
in  the  other  branch  of  the  Govt  of  the  U.  S. 

3.  The  last  resort  within  the  purview  of  the  Const?  is  the  process  of 
amendment  provided  for  by  itself  and  to  be  executed  by  the  States. 

Whether  these  provisions  taken  together  be  the  best  that  might  have 
been  made ;  and  if  not,  what  are  the  improvements,  that  ought  to  be  intro- 
duced, are  questions  altogether  distinct  from  the  object  presented  by  your 
communication,  which  relates  to  the  Constitution  as  it  stands. 

In  the  event  of  a  failure  of  all  these  Constitutional  resorts  against 
usurpations  and  abuses  of  power  and  of  an  accumulation  thereof  rendering 
passive  obedience  &  nonresistance  a  greater  evil  than  resistance  and  revolu- 
tion, there  can  remain  but  one  resort,  the  last  of  all,  the  appeal  from  the 
cancelled  obligation  of  the  Constitutional  compact  to  original  rights  and  the 
law  of  self-preservation.  This  is  the  Ultima  ratio,  under  all  Governments, 
whether  consolidated,  confederated,  or  partaking  of  both  those  characters. 
Nor  can  it  be  doubted  that  in  such  an  extremity  a  single  State  would  have  a 
right,  tho'  it  would  be  a  natural  not  a  constitutional  Right  to  make  the  appeal. 
The  same  may  be  said  indeed  of  particular  portions  of  any  political  com- 
munity whatever  so  oppressed  as  to  be  driven  to  a  choice  between  the 
alternative  evils.  .    .    .1 

1  The  Writings  of  James  Madison,  Hunt  ed.,  Vol.  ix,  pp.  383-7. 


XVII 
THE  NATURE  OF  JUDICIAL  POWER 

What  is  judicial  power?  It  will  not  do  to  answer  that  it  is  the  power  exercised  by 
the  courts,  because  one  of  the  very  things  to  be  determined  is  what  power  they  may  exer- 
cise. It  is,  indeed,  very  difficult  to  find  any  exact  definition  made  to  hand.  It  is  not  to 
be  found  in  any  of  the  old  treatises,  or  any  of  the  old  English  authorities  or  judicial  deci- 
sions, for  a  very  obvious  reason.  While  in  a  general  way  it  may  be  true  that  they  had 
this  division  between  legislative  and  judicial  power,  yet  their  legislature  was,  neverthe- 
less, in  the  habit  of  exercising  a  very  large  part  of  the  latter.  The  House  of  Lords  was 
often  the  Court  of  Appeals,  and  Parliament  was  in  the  habit  of  passing  bills  of  attainder 
as  well  as  enacting  convictions  for  treason  and  other  crimes. 

Judicial  power  is,  perhaps,  better  defined  in  some  of  the  reports  of  our  own  courts 
than  in  any  other  place,  and  especially  so  in  the  Supreme  Court  of  the  United  States, 
because  it  has  more  often  been  the  subject  of  comment  there,  and  its  consideration  more 
frequently  necessary  to  the  determination  of  questions  arising  in  that  court  than  anywhere 
else.  It  is  the  power  of  a  court  to  decide  and  pronounce  a  judgment  and  carry  it  into 
effect  between  persons  and  parties  who  bring  a  case  before  it  for  decision.  (Mr.  Justice 
Miller,  Lectures  on  the  Constitution  of  the  United  States,  1891,  pp.  313-314.) 

As  to  what  is  meant  by  the  phrase  "judicial  power,"  see  Callanan  v.  Judd,  23  Wisconsin, 
343,  349.  Also  charge  of  Judge  Nelson  to  grand  jury  of  the  Circuit  Court,  1851,  that  it 
is  the  power  conferred  upon  courts  in  the  strict  sense  of  that  term;  courts  that  compose 
one  of  the  great  departments  of  the  government;  and  not  power  judicial  in  its  nature,  or 
quasi  judicial,  invested  from  time  to  time  in  individuals,  separately  or  collectively,  for  a 
particular  purpose  and  limited  time.  1  Blatchford,  635.  Gilbert  v.  Priest,  65  Barb.  444, 
448.  (Mr.  Justice  Miller,  Lectures  on  the  Constitution  of  the  United  States,  1891,  p.  313, 
note.) 

It  appears  in  our  books,  that  in  many  cases,  the  common  law  will  controul  Acts  of 
Parliament,  and  sometimes  adjudge  them  to  be  utterly  void:  .  .  .  (Lord  Chief  Justice 
Coke,  in  Doctor  Bovham's  Case.  8  Co.  Rep.  113b,  uSa,  decided  in  1610,  English  Reports, 
Full  Reprint,  Vol.  LXXVII,  King's  Bench  Division,  VI,  1907,  p.  652.) 

Even  an  Act  of  Parliament,  made  against  natural  equity,  as  to  make  a  man  Judge  in 
his  own  case,  is  void  in  it  self,  for  jura  naturae  sunt  immutabilia,  and  they  are  leges  legum. 
(Lord  Chief  Justice  Hobart  in  Day  v.  Savadge,  Hobart  85,  87,  decided  in  161s,  English 
Reports,  Full  Reprint,  Vol.  LXXX,  King's  Bench  Division,  IX,  1907,  p.  237.) 

And  what  my  Lord  Coke  says  in  Dr.  Bon  ham's  case  in  his  8  Co.  is  far  from  any  extrav- 
agancy, for  it  is  a  very  reasonable  and  true  saying,  that  if  an  Act  of  Parliament  should  ordain 
that  the  same  person  should  be  party  and  Judge,  or,  which  is  the  same  thing,  Judge  in  his 
own  cause,  it  would  be  a  void  Act  of  Parliament;  .  .  (Lord  Chief  Justice  Holt,  in  The 
City  of  London  v.  Wood,  12  Mod.  669,  687-688,  decided  in  1702,  English  Reports,  Full 
Reprint,  Vol.  LXXXVIII,  King's  Bench  Division,  XVII,  1908,  p.  1602.) 

The  great  and  chief  End  therefore,  of  Mens  uniting  into  Commonwealths,  and  putting 
themselves  under  Government,  is  the  Preservation  of  their  Property.  To  which  in  the 
state  of   Nature  there  are  many  things  wanting. 

First,  There  wants  an  establish'd,  settled,  known  Law,  received  and  allowed  by  common 
Consent  to  be  the  Standard  of  right  and  wrong,  and  the  common  Measure  to  decide  all 
Controversies  between  them.  For  though  the  Law  of  Nature  be  plain  and  intelligible  to 
all  rational  Creatures;  yet  Men  being  biassed  by  their  Interest,  as  well  as  ignorant  for 
want  of  Study  of  it,  are  not  apt  to  allow  of  it  as  a  Law  binding  to  them  in  the  application 
of  it  to  their  particular  Cases. 

338 


THE  NATURE  OF  JUDICIAL  POWER  339 

Secondly,  In  the  state  of  Nature  there  wants  a  known  and  indifferent  Judge,  with 
Authority  to  determine  all  Differences  according  to  the  established  Law.  For  every  one 
in  that  State  being  both  Judge  and  Executioner  of  the  Law  of  Nature,  Men  being  partial 
to  themselves,  Passion  and  Revenge  is  very  apt  to  carry  them  too  far,  and  with  too  much 
Heat,  in  their  own  Cases;  as  well  as  Negligence,  and  unconcernedness,  to  make  them  too 
remiss  in  others  Mens. 

Thirdly,  In  the  state  of  Nature  there  often  wants  Power  to  back  and  support  the 
Sentence  when  right,  and  to  give  it  due  Execution.  They  who  by  any  Injustice  offended, 
will  seldom  fail,  where  they  are  able,  by  Force  to  make  good  their  Injustice;  such 
Resistance  many  times  makes  the  Punishment  dangerous,  and  frequently  destructive,  to 
those  who  attempt  it.  (John  Locke,  Two  Treatises  of  Government,  1600,  Book  II,  Ch.  IX, 
Sections  124-126,  Works,  Edition  of  1724,  Vol.  II.) 

This  writ  is  against  the  fundamental  principles  of  law.   . 

As  to  Acts  of  Parliament.  An  act  against  the  Constitution  is  void;  an  act  against 
natural  equity  is  void;  and  if  an  act  of  Parliament  should  be  made,  in  the  very  words 
of  this  petition,  it  would  be  void.     The  executive  Courts  must  pass  such  acts  into  disuse. 

8  Rep.  118  from  Viner  Reason  of  the  common  law  to  control  an  act  of  Parliament. 
Iron  manufacture.  Noble  Lord's  proposal,  that  we  should  send  our  horses  to  England  to 
be  shod.  .  .  .  (Argument  of  James  Otis  in  Paxton's  Case  on  Writs  of  Assistance,  1761, 
Works  of  John  Adams,  Vol.  2,  1850,  pp.  521-522.) 

The  law  was  laid  down  in  the  same  way,  on  the  authority  of  the  above  cases,  in 
Bacon's  Abridgment,  first  published  in  1735;  in  Viner's  Abridgment,  published  1741-51, 
from  which  Otis  quoted  it;  and  in  Comyn's  Digest,  published  1762-7,  but  written  more 
than  twenty  years  before.  And  there  are  older  authorities  to  the  same  effect.  So  that 
at  the  time  of  Otis's  agreement  his  position  appeared  to  be  supported  by  some  of  the  highest 
authorities  in  the  English  law. 

The  same  doctrine  was  repeatedly  asserted  by  Otis,  and  was  a  favorite  in  the  Colonies 
before  the  Revolution  There  are  later  dicta  of  many  eminent  judges  to  the  effect  that  a 
statute  may  be  void  as  exceeding  the  just  limits  of  legislative  power;  but  it  is  believed 
there  is  no  instance,  except  one  case  in  South  Carolina,  in  which  an  act  of  the  Legislature 
has  been  set  aside  by  the  courts,  except  for  conflict  with  some  written  constitutional 
provision. 

The  reduction  of  the  fundamental  principles  of  government  in  the  American  States  to 
the  form  of  written  constitutions,  established  by  the  people  themselves,  and  beyond  the 
control  of  their  representatives,  necessarily  obliged  the  judicial  department,  in  case  of 
a  conflict  between  a  constitutional  provision  and  a  legislative  act,  to  obey  the  Constitution 
as  the  fundamental  law  and  disregard  the  statute.  This  duty  was  recognized,  and  unconsti- 
tutional acts  set  aside,  by  courts  of  justice,  even  before  the  adoption  of  the  Constitution 
of  the  United  States.  Since  the  ratification  of  that  Constitution  the  power  of  the  courts 
to  declare  unconstitutional  statutes  void  has  become  too  well  settled  to  require  an  accumu- 
lation of  authorities.  But  as  the  office  of  the  judiciary  is  to  decide  particular  cases,  and 
not  to  issue  general  edicts,  only  so  much  of  a  statute  is  to  be  declared  void  as  is  repugnant 
to  the  Constitution  and  covers  the  case  before  the  court,  unless  the  constitutional  and 
unconstitutional  provisions  are  so  interwoven  as  to  convince  the  court  that  the  legislature 
would  not  have  passed  the  one  without  the  other.  (Mr.  Justice  Gray,  Were  the  Writs  of 
Assistance  Legal,  1865,  in  Quincy,  Massachusetts  Reports,  1761-1772,  Appendix  I,  pp. 
526-530.) 

Judicial  power,  as  contradistinguished  from  the  power  of  the  laws,  has  no  existence. 
Courts  are  the  mere  instruments  of  the  law,  and  can  will  nothing.  When  they  are  said 
to  exercise  a  discretion,  it  is  a  mere  legal  discretion,  a  discretion  to  be  exercised  in  discern- 
ing the  course  prescribed  by  law;  and,  when  that  is  discerned,  it  is  the  duty  of  the  court 
to  follow  it.  Judicial  power  is  never  exercised  for  the  purpose  of  giving  effect  to  the 
will  of  the  judge;  always  for  the  purpose  of  giving  effect  to  the  will  of  the  legislature; 
or,  in  other  words,  to  the  will  of  the  law.  (Chief  Justice  Marshall  in  O shorn  v.  United 
States  Bank,  o  Wheaton,  738,  866,  decided  in  1824.) 

The  judicial  power  mentioned  in  the  constitution,  and  vested  in  the  courts,  means  the 
power  conferred  upon  courts  ordained  and  established  by  and  under  the  constitution,  in 
the  strict  and  appropriate  sense  of  that  term— courts  that  compose  one  of  the  three  great 
departments  of  the  government  prescribed  by  the  fundamental  law,  the  same  as  the  other 
two,  the  legislative  and  the  executive.  (Mr.  Justice  Nelson  on  The  Fugitive  Slave  Law, 
1  Blatchford,  Appendix,  p.  644,  decided  in  1851.) 


340  THE   UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

The  award  of  execution  is  a  part,  and  an  essential  part  of  every  judgment  passed  by  a 
court  exercising  judicial  power.  It  is  no  judgment,  in  the  legal  sense  of  the  term,  with- 
out it  Without  such  an  award  the  judgment  would  be  inoperative  and  nugatory,  leaving 
the  aggrieved  party  without  a  remedy.  (Chief  Justice  Taney  in  Gordon  v.  United  States, 
117  United  States,  697  702,  decided  in  1864.) 

In  the  Constitution  are  provisions  in  separate  articles  for  the  three  great  departments 
of  government — legislative,  executive  and  judicial.  But  there  is  this  significant  difference 
in  the  grants  of  powers  to  these  departments:  The  first  article,  treating  of  legislative 
powers,  does  not  make  a  general  grant  of  legislative  power.  ...  By  reason  of  the  fact 
that  there  is  no  general  grant  of  legislative  power  it  has  become  an  accepted  constitutional 
rule  that  this  is  a  government  of  enumerated  powers.     .     .     . 

On  the  other  hand,  in  Article  III,  which  treats  of  the  judicial  department  ...  we 
find  that  section  1  reads  that  "the  judicial  power  of  the  United  States,  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish."     By  this  is  granted  the  entire  judicial  power  of  the  Nation.     .     .     . 

Speaking  generally,  it  may  be  observed  that  the  judicial  power  of  a  nation  extends  to 
all  controversies  justiciable  in  their  nature,  the  parties  to  which  or  the  property  involved  in 
which  may  be  reached  by  judicial  process,  and  when  the  judicial  power  of  the  United 
States  was  vested  in  the  Supreme  and  other  courts  all  the  judicial  power  which  the  Nation 
was  capable  of  exercising  was  vested  in  those  tribunals,  and  unless  there  be  some  limita- 
tions expressed  in  the  Constitution  it  must  be  held  to  embrace  all  controversies  of  a 
justiciable  nature  arising  within  the  territorial  limits  of  the  Nation,  no  matter  who  may 
be  the  parties  thereto.  (Mr.  Justice  Brewer  in  Kansas  v.  Colorado,  206  United  States,  46, 
81-83,  decided  in  1907.) 


CHAPTER  XVII 

THE    NATURE   OF   JUDICIAL    POWER 

As  heretofore  suggested,  the  statesmen  of  the  Constitutional  Convention   influence  of 
appear  to  have  read  and  deeply  pondered  Montesquieu's  Spirit  of  the  Laws,   Montes(iuieu 
and  the  great  and  conscious  division  of  the  more  perfect  Union  into  three 
departments  appears  to  be  due  largely  to  Montesquieu's  influence  and  to  be 
traceable  to  the  Spirit  of  the  Laws,  and  more  especially  to  the  following 
passage : 

When  the  legislative  and  executive  powers  are  united  in  the  same  per- 
son, or  in  the  same  body  of  magistrates,  there  can  be  no  liberty ;  because 
apprehensions  may  arise,  lest  the  same  monarch  or  senate  should  enact 
tyrannical  laws,  to  execute  them  in  a  tyrannical  manner. 

Again,  there  is  no  liberty,  if  the  power  of  judging  be  not  separated  from 
the  legislative  and  executive  powers.  Were  it  joined  with  the  legislative, 
the  life  and  liberty  of  the  subject  would  be  exposed  to  arbitrary  controul ;  for 
the  judge  would  be  then  the  legislator.  Were  it  joined  to  the  executive 
power,  the  judge  might  behave  with  all  the  violence  of  an  oppressor. 

There  would  be  an  end  of  every  thing,  were  the  same  man,  or  the  same 
body,  whether  of  the  nobles  or  of  the  people,  to  exercise  those  three  powers, 
that  of  enacting  laws,  that  of  executing  the  public  resolutions,  and  that  of 
judging  the  crimes  or  differences  of  individuals.1 

The  Articles  of  Confederation  created  a  union  intended  to  be  perpetual; 
but  it  contented  itself  with  an  association  of  the  States,  without  creating 
an  agency  to  make  that  association  effective,  even  for  the  specified  purposes. 
The  Congress  was  the  legislative  department,  but  its  acts  were  in  the  nature 
of  recommendations,  rather  than  laws  in  the  ordinary  sense  of  the  word. 
There  was  no  executive  department,  unless  the  Congress  is  to  be  considered 
an  executive,  which,  however,  could  not  carry  into  effect  the  laws  which  it 
enacted.  There  was  no  Judiciary,  although  the  ninth  of  the  Articles  of 
Confederation  authorized  and  the  Congress  in  fact  did  establish  a  Court  of 
Appeal  for  prize  cases,  which,  as  we  have  seen  in  the  famous  case  of  The 
Active,  overruled  a  decision  of  the  Pennsylvania  prize  court,  a  form  of  judi- 
ciary which  was,  however,  unable  to  carry  its  decision  into  effect.  The  same 
article,  recognizing  the  necessity  of  judicial  settlement  of  disputes  between 

1  Montesquieu,  The  Spirit  of  Laws,  English  translation,  1756,  Vol.  I,  Book  XI,  Chap  VI, 
p.  165. 

34i 


342 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Limitation 
of    Powers 


Congress   defines 
Extent  but 
not  Nature 
of  the  Court's 
Power 


the  States,  provided  a  method  by  which  temporary  commissions  should  be 
created,  coming  into  being  for  a  special  dispute  and  going  out  of  existence 
with  its  decision.     But  of  a  real  judiciary  there  was  nothing. 

The  advocates  of  a  more  perfect  Union  foresaw  that  it  could  not  be  perma- 
nent, unless  it  was  organized  upon  a  broader  basis,  and  unless  the  Union  of 
the  States  was  provided  with  appropriate  agencies  to  carry  into  effect  the 
sovereign  powers,  of  which  the  States  divested  themselves  in  the  common 
interest  while  reserving  the  exercise  of  all  other  sovereign  powers  which  they 
did  not  grant  to  the  agency  they  were  creating,  or  otherwise  divest  them- 
selves of. 

Recognizing  the  need  of  the  three  departments  of  government,  the 
necessity  of  their  separation,  as  advocated  by  Montesquieu,  and  the  neces- 
sity likewise  of  their  equality,  springing  from  their  separation,  the  framers 
of  the  Constitution  created  a  legislative,  executive  and  judiciary  department. 
As  the  Government  of  the  United  States  was  one  of  limited  powers,  it  neces- 
sarily followed  that  the  legislature  would  be  limited,  but  nevertheless  com- 
petent to  carry  into  effect  the  powers  directly  or  impliedly  granted  to  the 
United  States.  The  first  article  of  the  Constitution,  while  creating  a  Con- 
gress, does  not  vest  it  with  legislative  power  in  general,  but  with  "all  the 
legislative  powers  herein  granted."  In  the  same  manner  the  executive  power 
was  vested  in  a  President  of  the  United  States  of  America,  whose  powers 
were  likewise  limited,  inasmuch  as  he  could  only  execute  the  powers  vested 
in  the  United  States  which  were  expressly  or  impliedly  granted;  and  the 
origin,  nature  and  source  of  the  power  and  authority  of  the  President  are, 
as  stated  in  the  oath  of  office,  to  execute  the  office  of  President  and,  to 
the  best  of  his  ability,  "  preserve,  protect,  and  defend  the  Constitution  of  the 
United  States." 

The  third  article  of  the  Constitution,  for  each  of  these  divisions  is  cov- 
ered by  an  article,  and  in  this  order,  vests  "the  judicial  power  of  the  United 
States  "  in  a  Supreme  Court  and  such  inferior  courts  as  Congress  may  from 
time  to  time  ordain  and  establish.  As  in  the  previous  cases,  this  can  only 
mean  the  judicial  power  necessarily  or  impliedly  granted  to  the  United  States, 
but  since  the  Supreme  Court  was  a  new  institution  and  as  judicial  power,  in 
the  sense  in  which  it  was  here  used,  was  and  unfortunately  still  is  a  novelty 
in  the  older  world,  the  Congress  denned  its  extent,  although  it  did  not  attempt 
to  define  its  nature.  The  judiciary,  while  coextensive  with  the  legislative 
and  executive  departments  is,  like  each  of  them,  limited  in  extent  if  not  in 
nature.  In  the  case  of  Kilboum  v.  Thompson  (103  U.  S.  168,  190),  decided 
in  1880,  Mr.  Justice  Miller,  speaking  for  the  court  said: 


It  is  believed  to  be  one  of  the  chief  merits  of  the  American  system  of 
written  constitutional  law,  that  all  the  powers  intrusted  to  government, 
whether  State  or  national,  are  divided  into  the  three  grand  departments,  the 


THE    NATURE   OF    JUDICIAL    POWER 


343 


Judicial 
Power 
defined  by 
Court 
Itself 


executive,  the  legislative,  and  the  judicial.  That  the  functions  appropriate  to 
each  of  these  branches  of  government  shall  be  vested  in  a  separate  body  of 
public  servants,  and  that  the  perfection  of  the  system  requires  that  the  lines 
which  separate  and  divide  these  departments  shall  be  broadly  and  clearly 
defined.  It  is  also  essential  to  the  successful  working  of  this  system  that  the 
persons  intrusted  with  power  in  any  one  of  these  branches  shall  not  be  per- 
mitted to  encroach  upon  the  powers  confided  to  the  others,  but  that  each 
shall  by  the  law  of  its  creation  be  limited  to  the  exercise  of  the  powers 
appropriate  to  its  own  department  and  no  other. 

What  is  judicial  power?  This  question  Mr.  Justice  Miller  puts  in  his 
"  Lectures  on  the  Constitution  of  the  United  States;  "  and,  after  commenting 
upon  its  difficulty,  proceeds  to  answer  it  by  a  reference  to  decisions  of  the 
Supreme  Court  of  the  United  States.  "  It  will  not  do,"  he  says,  "  to  answer 
that  it  is  the  power  exercised  by  the  courts,  because  one  of  the  very  things 
to  be  determined  is  what  power  they  may  exercise.  It  is,  indeed,  very  diffi- 
cult to  find  any  exact  definition  made  to  hand 

"  Judicial  power  is,  perhaps,  better  defined  in  some  of  the  reports 
of  our  own  courts  than  in  any  other  place,  and  especially  so  in  the  Supreme 
Court  of  the  United  States,  because  it  has  more  often  been  the  subject  of 
comment  there,  and  its  consideration  more  frequently  necessary  to  the  deter- 
mination of  questions  arising  in  that  court  than  anywhere  else.  It  is  the 
power  of  a  court  to  decide  and  pronounce  a  judgment  and  carry  it  into  effect 
between  persons  and  parties  who  bring  a  case  before  it  for  decision."  ' 

In  this  connection,  however,  we  must  not  forget  that  the  first  English    influence  of 

°  .    t  English 

colonists  brought  with  them  the  common  law  of  England,  that  the  British    Common  Law 

plantations  in  America  were  therefore  familiar  with  the  principles  of  the 

common  law,  and  that  the  statesmen  who  framed  the  Constitution  were  born 

and  bred  in  it.    To  the  common  law,  therefore,  we  must  look  for  the  nature 

of  judicial  power,  just  as  we  look  to  the  Constitution  for  its  extent.     It  is 

common  knowledge  that  the  first  Englishman  to  set  his  foot  upon  the  New 

World  brought  with  him  the  rights  and  privileges  of  Englishmen  and  the 

law  by  which  they  were  defined,  interpreted  and  protected,  and  it  would  be 

a  cheap  display  of  learning  to  quote  authority  for  the  position  that  the  law 

in  force  in  England  before  the  Declaration  of  Independence  was,  in  as  far 

as  it  was  applicable  to  the  colonies,  binding  upon  them  as  bodies  politic  and 

upon  the  colonists  as  English  subjects.     We  should  expect,  therefore,  to 

find  that  the  settlers  understood  judicial  power  in  the  sense  in  which  it  was 

understood  in  the  mother  country  and  that  the  statesmen  of  the  Revolution 

and  the  framers  of  the  Constitution  used  the  expression  "  judicial  power  " 

in  the  sense  in  which  it  was  used  in  the  jurisprudence  of  the  old  country, 

except  in  so  far  as  the  meaning  attached  to  that  expression  in  the  English 

system  was  consciously  modified  or  departed  from. 

1  S.  F.  Miller,   Lectures  on  the  Constitution  of  the   United  States,  1893.   pp.   313,   314. 


344  THE    UNITED    STATES  I    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

It  is  therefore  enlightening  as  well  as  instructive  to  examine  a  few  Eng- 
lish cases  dealing  with  the  nature  of  judicial  power,  for  by  so  doing  we  not 
only  obtain  an  insight  into  the  subject  and- enable  ourselves  to  understand 
the  state  of  mind  of  the  framers  of  the  Constitution,  but  to  comprehend  how 
the  Supreme  Court  of  the  United  States,  without  the  express  and  literal 
authority  of  the  Constitution,  has  naturally  and  inevitably  passed  upon  the 
constitutionality  of  federal  as  well  as  State  legislation. 
English  A  very  interesting  and  early  case,  to  be  found  in  Professor  Wambaugh's 

?"  'h?.  Cases  on  Constitutional  Law  (from  which  these  examples  are  taken),  was 

Judicial  r  / 

Power  the  subject  of  discussion  in  1460  and  is  known  as  the  Duke  of  York's  claim 

to  the  Crown.1  Without  going  into  details,  it  is  sufficient  for  present  pur- 
poses to  state  that  the  Duke  of  York  claimed  the  English  Crown,  and  by  his 
counsel  presented  his  claim  in  writing  to  the  Lord  Chancellor,  with  the  request 
that  it  be  laid  by  him  before  the  Lords  spiritual  and  temporal  of  the  then 
Parliament,  and  "  that  the  said  Duke  might  have  brief  and  expedient  answer 
thereof."  The  Lords  spiritual  and  temporal  were  much  troubled,  and  in  the 
end  they  sent  for  the  King's  Justices  "  to  have  their  advice  and  counsel  in 
this  behalf,  and  there  delivered  to  them  the  writing  of  the  claim  of  the  said 
Duke,  and  in  the  King's  name  gave  them  strictly  in  commandment,  sadly  to 
take  advisement  therein,  and  to  search  and  find  all  such  objections  as  might 
be  laid  against  the  same,  in  fortifying  the  King's  right."  Apparently,  the 
Justices  were  also  much  troubled  by  this  request,  for,  when  summoned  before 
the  Lords  spiritual  and  temporal  for  answer,  they  said : 

That  they  were  the  Kyngs  Justices,  and  have  to  determyne  such  maters 
as  com  before  theym  in  the  lawe,  betwene  partie  and  partie,  and  in  such 
maters  as  been  betwene  partie  and  partie,  they  may  not  be  of  Counseill ;  and 
sith  this  mater  was  betwene  the  Kyng  and  the  seid  Due  of  York  as  two 
parties,  and  also  it  hath  not  be  accustumed  to  calle  the  Justices  to  Counseill 
in  such  maters  ....  they  humble  bysought  all  the  Lordes,  to  have  theym 
utterly  excused  of  eny  avyce  or  Counseill,  by  theym  to  be  yeven  in  that 
matier.2 

In  Clark's  Case  (5  Coke's  Reports,  64a),  decided  in  1596,  it  appeared  that 
the  town  of  St.  Albans,  with  the  assent  of  the  plaintiff  and  other  burgesses 
"  did  assess  a  sum  on  every  inhabitant  for  the  charges  in  erecting  the  courts 
there;  and  ordained,  that  if  any  should  refuse  to  pay,  &c.  that  he  should  be 
imprisoned."  The  Court  of  Common  Pleas  held,  however,  that  the  ordinance 
to  this  effect  was  null,  as  contrary  to  the  Magna  Charta,  Chapter  29,  pro- 
viding that  nullus  liber  homo  imprisonetur.  The  court  also  held  that  the 
consent  of  the  plaintiff  could  not  enable  it  to  take  jurisdiction  forbidden  by 

1  Eugene  Warnbaugh,  A  Selection  of  Cases  on  Constitutional  Law,  1914,  Book  i,  pp.  1-3. 
3  5  Rotuli  Parliamentorum,  375-6. 


THE    NATURE   OF   JUDICIAL    POWER  345 

law,  and  that,  while  the  corporation  of  St.  Albans  could  not  impose  imprison- 
ment for  a  failure  to  pay  the  charge,  as  this  was  contrary  to  the  statute,  it 
might  very  properly  have  imposed  a  penalty  or  a  fine. 

A  few  years  later,  in  1607,  a  very  interesting  case  arose,  entitled  Pro- 
hibitions Del  Roy  (12  Coke's  Reports,  63,  65),  which  involved  the  question 
whether  James  I  as  King  of  England  could  himself  administer  justice  be- 
tween party  and  party,  or  whether  law  or  justice,  being  the  exercise  of 
judicial  power,  could  only  be  administered  by  the  court.  The  question  was 
one  of  such  importance  that  all  the  Judges  of  England  and  Barons  of  Ex- 
chequer were  summoned  before  his  Majesty,  and  Sir  Edward  Coke,  then 
Chief  Justice  of  the  Common  Pleas,  spoke  on  behalf  and  with  the  consent  of 
the  judges,  denying  the  claim  of  the  King  to  dispense  justice  in  the  concrete 
case.  The  question  involved  in  this  dispute  between  the  King  and  the  court  is 
so  material  to  the  functions  of  a  court,  and  so  clearly  states  the  necessity  of 
independence  on  the  part  of  judges,  as  to  deserve  quotation.  After  the  state- 
ment of  Lord  Coke  that,  although  justice  is  administered  in  the  name  of  the 
King,  the  judgment  is  nevertheless  reached  and  delivered  by  the  judges  of  the 
court,  sworn  to  execute  justice  according  to  the  law  and  custom  of  England, 
the  King  said,  as  reported  by  his  Lordship,  "  He  thought  the  law  was 
founded  upon  reason,  and  that  he  and  others  had  reason,  as  well  as  the 
Judges."     To  which  the  Chief  Justice  answered: 

True  it  was,  that  God  had  endowed  his  Majesty  with  excellent  science, 
and  great  endowments  of  nature;  but  His  Majesty  was  not  learned  in  the 
laws  of  his  realm  of  England,  and  causes  which  concern  the  life,  or  inherit- 
ance, or  goods,  or  fortunes  of  his  subjects,  are  not  to  be  decided  by  natural 
reason  but  by  the  artificial  reason  and  judgment  of  law,  which  law  is  an 
act  which  requires  long  study  and  experience,  before  that  a  man  can  attain  to 
the  cognizance  of  it :  and  that  the  law  was  the  golden  met-wand  and  measure 
to  try  the  causes  of  the  subjects ;  and  which  protected  his  Majesty  in  safety 
and  peace:  with  which  the  King  was  greatly  offended,  and  said,  that  then 
he  should  be  under  the  law,  which  was  treason  to  affirm,  as  he  said ;  to 
which  I  said,  that  Bracton  saith,  quod  Rex  non  debet  esse  sub  homine,  scd 
sub  Deo  et  lege. 

This  solemn  opinion  of  the  judges,  given  under  these  trying  circumstances, 
denying  the  judicial  power  to  the  executive,  was  not  a  deterrent  to  a  man  of 
King  James'  type,  who  not  only  claimed  the  power  to  interpret  the  law  but  to 
make  that  law  which  he  claimed  the  right  to  interpret.  In  the  matter  of 
Proclamations  (12  Coke's  Reports,  74—6),  which  was  argued  before  the  Privy 
Council  in  1610,  Lord  Chief  Justice  Coke  again  came  into  collision  with  his 
Majesty,  who  claimed  the  right  to  prohibit  new  buildings  in  and  about  Lon- 
don, and  likewise  by  proclamation  to  prohibit  the  making  of  starch  out  of 
wheat.    As  these  acts  on  the  part  of  his  Majesty  were  regarded  as  grievances 


346  THE   UNITED    STATES  I    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

and  against  law  and  justice,  the  King  conferred  with  his  Privy  Council  and 
his  judges.  Lord  Coke  again  expressed  his  opinion  as  became  a  judge, 
saying  squarely  that  "the  King  cannot  change  any  part  of  the  common  law, 
nor  create  any  offence  by  his  proclamation,  which  was  not  an  offence  before, 
without  Parliament."  But,  recognizing  the  importance  of  the  question,  Lord 
Coke  asked  "  to  have  a  time  of  consideration  and  conference  "  with  his 
brethren,  a  request  which  was  reluctantly  granted.  The  result  of  the  con- 
sideration and  conference  is  thus  reported  by  Coke  himself: 

In  the  same  term  it  was  resolved  by  the  two  Chief  Justices,  Chief  Baron, 
and  Baron  Altham,  upon  conference  betwixt  the  Lords  of  the  Privy  Council 
and  them,  that  the  King  by  his  proclamation  cannot  create  any  offence  which 
was  not  an  offence  before,  for  then  he  may  alter  the  law  of  the  land  by  his 
proclamation  in  a  high  point ;  for  if  he  may  create  an  offence  where  none  is, 
upon  that  ensues  fine  and  imprisonment ;  also  the  law  of  England  is  divided 
into  three  parts,  common  law,  statute  law,  and  custom;  but  the  King's 
proclamation  is  none  of  them. 

It  is  believed  that  these  cases,  tried  and  decided  before  an  English  colony 
had  been  firmly  planted  in  America,  show  that  the  conception  of  judicial 
power,  as  it  was  later  to  obtain  in  America,  was  already  well  understood  in 
the  mother  country,  and  that,  because  of  that  fact,  it  was  bound  to  prevail  in 
the  English  speaking  portion  of  the  New  World.  Before  considering  the 
American  cases  dealing  with  this  subject,  it  is  advisable  to  refer  to  two  further 
English  cases,  decided  after  the  establishment  of  the  American  colonies,  but 
before  the  Declaration  of  Independence. 

The  first  case  is  Rex  v.  Cutbush  (4  Burrow,  2204,  2208),  decided  by 
the  King's  Bench  in  1768.  This  was  upon  what  is  called  an  information,  in 
the  nature  of  a  quo  warranto,  brought  against  the  defendant  to  show  by 
what  warrant  he  claimed  to  be  a  common  councilman  of  Maidstone.  It  ap- 
pears that  Maidstone  was  incorporated  in  the  twenty-first  year  of  King 
George  II,  under  the  name  of  "  the  mayor,  jurats,  and  commonalty  of  the 
King's  town  and  parish  of  Maidstone  in  the  county  of  Kent,"  the  charter  of 
incorporation  providing  that  thirteen  of  the  inhabitants  should  be  chosen 
Jurats  and  one  of  the  Jurats  Mayor,  and  that  forty  of  the  remaining  prin- 
cipal inhabitants  should  be  chosen  as  the  Common  Council  of  the  said 
town  and  parish.  On  the  plea  that  the  Commonalty  of  Maidstone  was 
very  numerous,  and  that  an  admission  of  them  to  vote  in  the  election  of 
a  common  councilman  had  been  found  by  experience  to  occasion  divers 
riots,  disorders,  and  great  popular  confusion,  the  Mayor,  Jurats  and  Com- 
mon Council  made  a  by-law  providing  that,  in  lieu  of  election  by 
the  Commonalty,  the  Common  Councilmen  should  be  elected  by  the  pres- 
ent members  thereof  and  sixty  others,   who,  at  the  time  of  the  election, 


THE    NATURE   OF   JUDICIAL    POWER  347 

should  be  the  senior  common  freemen  of  the  said  town  and  parish  of 
Maidstone  as  they  should  stand  in  order  and  place  of  seniority  upon  the 
books  of  admission  of  freemen  of  the  said  town  and  parish.  The  defendant, 
Cutbush,  was  elected  a  common  councilman  pursuant  to  this  by-law.  If  the 
by-law  was  valid,  he  was  properly  elected;  if  the  by-law  was  inconsistent 
with  the  charter  of  incorporation,  he  was  then  illegally  elected  and  not  entitled 
to  hold  the  office.  The  court  was  unanimously  of  the  opinion  that  the  by-law 
was  bad,  that  it  was  contrary  to  the  intention  of  the  charter,  Lord  Chief  Jus- 
tice Mansfield  saying: 

It  is  made  by  a  part  of  the  corporation,  to  deprive  the  rest  of  their  right 
to  elect,  without  their  consent.  The  charter  gives  this  right  to  the  whole 
body  of  the  commonalty ;  the  by-law  confines  it  to  a  narrow  compass  of  the 
sixty  seniors  only.     This  expressly  contradicts  the  charter. 

Mr.  Justice. Yates  concurred  with  Lord  Mansfield,  and  added  that: 

Where  a  corporation  is  by  charter,  and  the  common-council  is  created 
by  the  charter,  they  ought  (as  being  the  creature  of  the  charter)  to  be  re- 
strained from  making  any  by-laws  inconsistent  with  it,  or  counteracting  the 
end,  intentions  and  directions  of  it. 

The  second  of  these  cases  is  Campbell  v.  Hill  (Cowper,  204,  212,  213), 
decided  by  the  King's  Bench  in  1774,  upon  the  eve  of  the  American  Revolu- 
tion. For  present  purposes,  it  is  sufficient  to  say  that  the  Island  of  Grenada 
had  been  captured  from  the  French  and  ceded  to  Great  Britain  by  the  treaty 
of  February  10,  1763;  that  by  proclamations  of  King  George  III  dated  Octo- 
ber 7,  1763,  and  April  9,  1764,  the  Crown  empowered  the  Governor,  as  soon 
as  the  state  of  the  Island  should  permit,  to  summon  a  General  Assembly  in  the 
manner  used  in  the  colonies  and  provinces  of  America;  and  that  such  assem- 
blies should  make  laws  with  the  consent  of  the  Governor  and  Council.  After 
the  issuance  of  the  proclamation  of  October  7,  1763,  the  King  issued  a 
further  proclamation,  laying  an  export  duty  of  4%  per  cent  upon  all  of  the 
commodities  produced  in  the  Island.  The  defendant  collected  the  duties  from 
the  plaintiff,  who  sued  in  an  action  of  money  had  and  received,  to  recover  the 
amount  of  the  export  duties  which  he  had  been  obliged  to  pay.  The  question 
was  whether  the  King  could,  by  a  later  proclamation,  lay  an  export  tax  upon 
the  produce  of  the  Island  when,  by  the  earlier  proclamation  of  October  7, 
1763,  he  had,  to  quote  Lord  Mansfield's  language,  "precluded  himself  from 
the  exercise  of  a  legislative  authority  over  the  island  of  Grenada."  On  this 
point  the  court  was  unanimous,  holding  that  "  the  King  had  immediately  and 
irrevocably  granted  to  all  who  were  or  should  become  inhabitants,  or  who 
had,  or  should  acquire  property  in  the  Island  of  Grenada,  or  more  generally 


348  THE    UNITED    STATES:    A   STUDY   IN    INTERNATIONAL   ORGANIZATION 

to  all  whom  it  might  concern,  that  the  subordinate  legislation  over  the  island 
should  be  exercised  by  an  assembly  with  the  consent  of  the  governor  and 
council,  in  like  manner  as  the  other  islands  belonging  to  the  king."  As  in 
the  case  of  Rex  v.  Cutbush,  where  we  have  the  judicial  power  declaring  the 
by-law  of  the  parish  of  Maidstone  void  as  inconsistent  with  the  charter  of 
incorporation,  that  is  to  say,  the  judicial  power  setting  aside  an  act  of  the 
legislature  (in  this  case  a  corporation)  inconsistent  with  the  grant,  so  in  the 
case  of  Campbell  v.  Hall,  we  have  the  judicial  power  taking  jurisdiction  of 
an  act  of  the  executive  and  declaring  it  inconsistent  with  the  law  of  the  land. 

We  are  now  prepared  to  consider  a  leading  case  of  colonial  times,  in 
which  the  judicial  power  of  the  mother  country  set  aside  an  act  of  the 
colonial  legislature  of  Connecticut  and  a  judgment  of  the  Connecticut  Court 
of  Probate  organized  under  the  charter  of  the  colony,  as  the  act  and  the 
judgment  were  in  excess  of  the  power  granted  by  the  charter.  The  case  of 
Winthrop  v.  Lcchmere  (7  Connecticut  Colonial  Records,  571),  decided  by 
the  Privy  Council  in  1728,  involved  the  validity  of  an  act  of  the  colonial 
legislature,  providing  that,  in  the  case  of  a  person  dying  intestate,  the  realty 
should  descend  to  the  male  and  female  children  of  the  deceased,  and  that  the 
male  should  receive  a  double  portion,  contrary  to  the  law  of  descent  in  Eng- 
land, which,  in  such  a  case,  vested  all  the  realty  in  the  male  to  the  exclusion 
of  the  female.  From  the  decision  of  the  Connecticut  Court,  distributing  the 
property  according  to  the  colonial  statute,  the  male  child,  one  Winthrop,  son 
of  the  deceased  intestate,  appealed  to  the  King  in  Council  to  admit  an  appeal, 
which  had  been  disallowed  by  the  Connecticut  authorities.  The  appeal  was 
granted  and  the  appeal  was  referred  to  the  Committee  for  Hearing  Appeals 
from  the  Plantations.  The  question  was  elaborately  argued  for  the  appellant 
by  Sir  Philip  Yorke,  then  Attorney  General,  later  Lord  Chancellor  Hard- 
wicke,  and  Sir  Charles  Talbot,  then  Solicitor  General  and  later  Lord  Chan- 
cellor Talbot,  with  the  result  that  the  Committee  for  Hearing  Appeals  from 
the  Plantations  advised  his  Majesty  "  that  the  said  act  for  the  settlement  of 
Intestate  Estates  should  be  declared  null  and  void,  being  contrary  to  the 
laws  of  England,  in  regard  it  makes  lands  of  inheritances  distributable  as 
personal  estates,  and  is  not  warranted  by  the  charter  of  that  Colony."  We 
here  have  the  act  of  a  legislature  of  a  body  politic,  a  colony,  and  later  to  be  a 
State  of  the  American  'Union  under  this  very  charter,  set  aside  as  null  and 
void  by  a  committee  exercising  judicial  powers. 

We  are  justified  in  saying  that,  before  the  outbreak  of  the  American 
Revolution,  the  lawyers  and  statesmen  of  England  as  well  as  of  the  colonies 
were  familiar  with  that  conception  of  judicial  power,  by  virtue  of  which  it 
refused,  as  in  the  case  of  the  Duke  of  York's  claim,  to  pass  upon  a  political 
question;  by  virtue  of  which  it  denied  to  the  executive  the  right  to  administer 


THE    NATURE    OF    JUDICIAL    POWER  349 

justice  between  parties  litigant  and  the  right  to  issue  proclamations,  decree 
prohibitions  inconsistent  with  the  law,  or  to  make  law;  and  by  virtue  of  which 
a  by-law  of  an  incorporated  town  and  an  act  of  the  legislature  of  a  colony 
were  held  by  the  judicial  power  to  be  in  excess  of  the  grant  of  power  con- 
tained in  the  charter. 

These  are  English  precedents,  with  which  the  lawyers  of  the  colonies  were  American 
familiar,  or  of  which  they  were  ignorant  at  their  peril.  We  have,  however,  Case 
an  American  case,  decided  in  1780,  one  year  before  the  Articles  of  Con- 
federation creating  the  Confederacy  went  into  operation,  and  by  the  Chief 
Justice  of  the  court,  a  framer  of  the  more  perfect  Union,  participating  in 
the  trial  and  disposition  of  the  case.  In  Holmes  v.  Walton,1  for  this  is  the 
case  to  which  reference  has  been  made,  it  appeared  that  one  Walton,  acting 
under  a  statute  of  the  State  of  New  Jersey  passed  October  8,  1778,  seized 
goods  in  the  possession  of  Holmes  and  Ketcham  which  had  been  brought  into 
the  American  lines  from  a  place  in  possession  of  the  British,  and,  in  con- 
formity with  the  statute,  Walton  took  the  goods  before  a  Justice  of  the  Peace. 
And,  still  acting  under  the  statute,  which  required  the  Justice  to  grant  a  jury 
of  six  men  upon  the  demand  of  either  party  and  forbade  an  appeal  in  case  of 
verdict,  a  jury  of  six  was  appointed,  a  verdict  thereof  given  in  favor  of  Wal- 
ton and  judgment  entered  accordingly  in  his  favor.  Notwithstanding'  the 
inhibition  of  the  statute,  the  defendant  appealed  to  the  Supreme  Court  of  New 
Jersey,  invoking  in  his  behalf  section  XXII  of  the  Constitution  of  New  Jersey, 
adopted  July  2,  1776,  providing  "that  the  inestimable  right  of  trial  by  jury  Passrtonan 
shall  remain  confirmed  as  a  part  of  the  law  of  this  colony,  without  repeal  for-  aiity  of  a""" 
ever,"  and  calling  attention  to  the  fact  that  the  verdict  of  the  jury  upon  which  Act " 
judgment  was  rendered  consisted  of  six  men  only,  when,  "  by  the  laws  of  the 
land  it  should  have  consisted  of  twelve  men."  As  a  jury  of  six  was  unknown 
to  the  common  law,  the  defendant  insisted  that  the  verdict  be  set  aside.  The 
case  was  one  in  which  the  feeling  of  the  community  was  with  the  plaintiff 
below,  who  had  seized  goods  found  in  possession  of  the  British  and  brought 
them  within  the  American  lines.  The  court  apparently  was  in  doubt,  so  that 
it  took  time  to  consider,  but  on  September  7,  1780,  in  the  presence  of  all 
the  judges  (among  them  David  Brearley,  Chief  Justice,  and  later  a  delegate 
of  his  State  to  the  Constitutional  Convention),  the  following  mandate  was 
entered : 

This  cause  having  been  argued  several  terms  past  and  the  court  having 
taken  time  to  consider  the  same,  and  being  now  ready  to  deliver  their  opinion, 
gave  the  same  seriation  for  the  plaintiffs  in  certiorari.  And  on  motion  of 
Boudinot  for  the  plaintiffs,  judgment  is  ordered  for  the  plaintiffs,  and  that 
the  judgment  of  the  justice  in  the  court  below  be  reversed.  .   .  .2 

1  The  American  Historical  Review,  Vol.  IV,  pp.  456-69  (April,  1899). 
'  Wambaugli,  Cases,  Book  I,  p.  22. 


350  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

It  was  natural,  therefore,  that  the  framers  of  the  Constitution  should 
regard  as  a  proper  exercise  of  the  judicial  power  a  decree  of  a  court  setting 
aside  an  act  of  the  Congress  of  the  United  States,  or  a  provision  of  the 
constitution  of  a  State,  or  an  act  of  its  legislature  or  of  the  executive  depart- 
ment as  inconsistent  with  the  grant  of  power  in  the  Constitution  of  the 
United  States. 
Extra-  Continuing  what  may  be  called  the  general  phase  of  the  subject,  there  are 

judicial  .  .  .  .  .-.--- 

Duties  instructive  instances  of  an  attempt  to  invest  judges  with  the  performance 

of  other  than  judicial  duties,  which  bring  into  prominence  the  essence  of 
judicial  power  and  of  judicial  duty  under  the  constitutional  grant.  Shortly 
after  the  government  was  organized  under  the  present  Constitution,  on 
March  4,  17S9,  an  act  of  Congress  was  passed  "to  provide  for  the  settle- 
ment of  the  Claims  of  Widows  and  Orphans  barred  by  the  limitations  hereto- 
fore established,  and  to  regulate  the  Claims  to  Invalid  Pensions."  1  The 
duty  to  determine  these  claims  was  assigned  to  the  Circuit  Courts  of  the 
United  States,  organized  in  pursuance  of  the  judiciary  act  of  September  25, 
1789.  Each  of  the  three  Circuit  Courts,  into  which  the  United  States  was 
divided,  considered  the  question,  and,  although  deeply  interested  in  the  pur- 
pose of  the  act  and  desirous  of  complying  with  it,  insofar  as  the  limits  of 
judicial  power  would  permit  them  to  do  so,  the  judges  stated  it  to  be  their 
opinion  that  the  duty  imposed  by  the  act  was  inconsistent  with  judicial 
power,  and  that  therefore  the  court  could  not,  and  that  the  judges  should  not, 
comply  with  it.  The  Circuit  Court  for  the  District  of  New  York,  consisting 
of  Jay,  Chief  Justice,  dishing,  Justice,  and  Duane,  District  Judge,  stated  that 
the  judges  of  the  Circuit  were  unanimously  of  the  opinion : 

That  by  the  Constitution  of  the  United  States,  the  government  thereof 
is  divided  into  three  distinct  and  independent  branches,  and  that  it  is  the 
duty  of  each  to  abstain  from,  and  to  oppose,  encroachments  on  either. 

That  neitber  the  Legislative  nor  the  Executive  branches,  can  constitu- 
tionally assign  to  the  Judicial  any  duties,  but  such  as  are  properly  judicial, 
and  to  be  performed  in  a  judicial  manner. 

That  the  duties  assigned  to  the  Circuit  courts,  by  this  act,  are  not  of  that 
description,  and  that  the  act  itself  does  not  appear  to  contemplate  them  as 
such ;  in  as  much  as  it  subjects  the  decisions  of  these  courts,  made  pursuant 
to  those  duties,  first  to  the  consideration  and  suspension  of  the  Secretary  at 
War,  and  then  to  the  revision  of  the  Legislature ;  whereas  by  the  Constitu- 
tion, neither  the  Secretary  at  War,  nor  any  other  Executive  officer,  nor  even 
the  Legislature,  are  authorized  to  sit  as  a  court  of  errors  on  the  judicial 
acts  or  opinions  of  this  court.2 

The  Circuit  Court  for  the  District  of  Pennsylvania,  consisting  of  Wilson 
and  Blair,  Justices,  and  Peters,  District  Judge,  made  the  following  repre- 

1  1   Statutes  at  Large,  243. 
'Hoyburn's  Case,  2  Dallas,  410,  Note. 


THE    NATURE   OF   JUDICIAL    POWER  351 

sentation   to  the   President   of   the   United   States  in   a  letter  dated   April 
18,  1792: 

To  you  it  officially  belongs  to  "  take  care  that  the  laws  "  of  the  United 
States  "  be  faithfully  executed."  Before  you,  therefore,  we  think  it  our 
duty  to  lay  the  sentiments,  which,  on  a  late  painful  occasion,  governed  us 
with  regard  to  an  act  passed  by  the  legislature  of  the  Union. 

The  people  of  the  United  States  have  vested  in  Congress  all  legislative 
powers  "  granted  in  the  constitution." 

They  have  vested  in  one  Supreme  court,  and  in  such  inferior  courts  as 
the  Congress  shall  establish,  "  the  judicial  power  of  the  United  States."  .   .   . 

This  Constitution  is  "  the  Supreme  Law  of  the  Land."  This  supreme 
law  "  all  judicial  officers  of  the  United  States  are  bound,  by  oath  or  affirma- 
tion, to  support." 

It  is  a  principle  important  to  freedom,  that  in  government,  the  judicial 
should  be  distinct  from,  and  independent  of,  the  legislative  department. 
To  this  important  principle  the  people  of  the  United  States,  in  forming  their 
Constitution,  have  manifested  the  highest  regard. 

They  have  placed  their  judicial  power  not  in  Congress,  but  in  "  courts." 
They  have  ordained  that  the  "  Judges  of  those  courts  shall  hold  their  offices 
during  good  behaviour,"  and  that  "  during  their  continuance  in  office,  their 
salaries  shall  not  be  diminished." 

Congress  have  lately  passed  an  act,  to  regulate,  among  other  things, 
"  the  claims  to  invalid  pensions." 

Upon  due  consideration,  we  have  been  unanimously  of  opinion,  that, 
under  this  act,  the  Circuit  court  held  for  the  Pennsylvania  district  could  not 
proceed ; 

1st.  Because  the  business  directed  by  this  act  is  not  of  a  judicial  nature. 
It  forms  no  part  of  the  power  vested  by  the  Constitution  in  the  courts  of  the 
United  States;  the  Circuit  court  must,  consequently,  have  proceeded  without 
constitutional  authority. 

2d.  Because,  if,  upon  that  business,  the  court  had  proceeded,  its  judg- 
ments (for  its  opinions  are  its  judgments)  might,  under  the  same  act,  have 
been  revised  and  controuled  by  the  legislature,  and  by  an  officer  in  the 
executive  department.  Such  revision  and  controul  we  deemed  radically 
inconsistent  with  the  independence  of  that  judicial  power  which  is  vested  in 
the  courts ;  and,  consequently,  with  that  important  principle  which  is  so 
strictly  observed  by  the  Constitution  of  the  United   States.1 

The  Circuit  Court  for  the  District  of  North  Carolina,  consisting  of  Ire- 
dell, Justice,  and  Sitgreaves,  District  Judge,  thus  addressed  the  President  of 
the  United  States  on  June  8,  1792: 

1.  That  the  Legislative,  Executive,  and  Judicial  departments,  are  each 
formed  in  a  separate  and  independent  manner ;  and  that  the  ultimate  basis  of 
each  is  the  Constitution  only,  within  the  limits  of  which  each  department  can 
alone  justify  any  act  of  authority. 

2.  That  the  Legislature,  among  other  important  powers,  unquestionably 
possess  that  of  establishing  courts   in   such  a  manner  as  to  their  wisdom 

12  Dallas,  411,  Note.     For  the  facts  of  the  "painful  occasion"  referred  to  above,  see 
post,  p.  365. 


352  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

shall  appear  best,  limited  by  the  terms  of  the  constitution  only ;  and  to 
whatever  extent  that  power  may  be  exercised,  or  however  severe  the  duty 
they  may  think  proper  to  require,  the  Judges,  when  appointed  in  virtue  of 
any  such  establishment,  owe  implicit  and  unreserved  obedience  to  it. 

3.  That  at  the  same  time  such  courts  cannot  be  warranted,  as  we  con- 
ceive, by  virtue  of  that  part  of  the  Constitution  delegating  Judicial  power, 
for  the  exercise  of  which  any  act  of  the  legislature  is  provided,  in  exercising 
(even  under  the  authority  of  another  act)  any  power  not  in  its  nature 
judicial,  or,  if  judicial,  not  provided  for  upon  the  terms  the  Constitution 
requires. 

4.  That  whatever  doubt  may  be  suggested,  whether  the  power  in  ques- 
tion is  properly  of  a  judicial  nature,  yet  inasmuch  as  the  decision  of  the 
court  is  not  made  final,  but  may  be  at  least  suspended  in  its  operation  by  the 
Secretary  at  War.  if  he  shall  have  cause  to  suspect  imposition  or  mistake; 
this  subjects  the  decision  of  the  court  to  a  mode  of  revision  which  we  con- 
sider to  be  unwarranted  by  the  Constitution ;  for,  though  Congress  may  cer- 
tainly establish,  in  instances  not  yet  provided  for,  courts  of  appellate  juris- 
diction, yet  such  courts  must  consist  of  judges  appointed  in  the  manner  the 
Constitution  requires,  and  holding  their  offices  by  no  other  tenure  than  that 
of  their  good  behaviour,  by  which  tenure  the  office  of  Secretary  at  War  is 
not  held.  And  we  beg  leave  to  add,  with  all  due  deference,  that  no  decision 
of  any  court  of  the  United  States  can,  under  any  circumstances,  in  our 
opinion,  agreeable  to  the  Constitution,  be  liable  to  a  reversion,  or  even  sus- 
pension, by  the  Legislature  itself,  in  whom  no  judicial  power  of  any  kind 
appears  to  be  vested,  but  the  important  one  relative  to  impeachments.1 

The  question  as  to  whether  the  act  of  Congress  conferred  upon  the  Cir- 
cuit Court  a  judicial  function,  and  whether  the  Federal  judges  could  act  as 
commissioners  if  they  could  not  act  as  judges,  arose  in  1792  in  Hayburn's 
case  (2  Dallas,  409).  It  was  then,  however,  not  decided  by  that  august 
tribunal,  as  it  took  the  question  under  advisement  until  the  next  term.  But 
no  decision  -was  ever  pronounced,  as  the  sections  of  the  act  of  1792  under 
which  action  had  been  taken  were  in  the  meantime  repealed,  and,  as  the  re- 
porter informs  us,  the  legislature  at  the  intermediate  session  provided  in 
another  way  for  the  relief  of  the  pensioners.  While  it  is  correct  to  say,  as 
is  often  done,  that  Hayburn's  case  did  not  decide  the  question,  it  was  not  left 
undecided,  as  it  appears  from  a  note  by  Mr.  Chief  Justice  Taney,  appended 
to  the  case  of  United  States  v.  Fcrreira  (13  Howard,  40),  decided  in  1851, 
that  the  exact  question  was  raised  and  decided  in  1794  by  the  Supreme  Court 
in  the  case  of  United  States  v.  Todd. 

An  act  of  Congress  was  passed  in  1793,  directing  the  Secretary  of  War 
and  the  Attorney  General  to  get  the  opinion  of  the  Supreme  Court  upon  the 
question,  and  the  court,  contrary  to  subsequent  practice,  assumed  jurisdiction 
on  the  theory  that  the  act  in  question  gave  it  original  jurisdiction.  An  agreed 
statement  of  facts  was  presented,  setting  forth  that  on  May  3,  1792,  one  Yale 

'  2  Dallas,  412,  Note. 


THE    NATURE   OF    JUDICIAL    POWER  353 

Todd  appeared  before  the  Circuit  Court,  composed  of  John  Jay,  Chief  Justice, 
William  Cushing,  Justice,  and  Richard  Law,  District  Judge,  then  sitting  in 
New  Haven  and  acting  as  commissioners  under  the  act  of  1792;  that  Todd 
submitted  his  claim  unde.-  the  act  to  the  court,  supporting  it  by  evidence,  and 
that  the  court  delivered  the  opinion  that  Todd  should  be  placed  upon  the 
pension  list.  A  certificate  of  the  proceedings  and  opinion  of  the  court  was, 
on  May  8,  1792,  transmitted  to  the  Secretary  of  War,  who,  following  the 
opinion  of  the  court,  placed  Todd  upon  the  pension  list  and  paid  over  to  him, 
in  accordance  with  the  opinion  and  on  behalf  of  the  United  States,  the  sum 
of  $150  for  arrears  and  $22.91  for  pension  to  be  due  in  September.  The 
United  States,  in  order  to  test  the  question,  sued  Todd  as  defendant  to  recover 
payment  of  the  sum  of  $172.91,  it  being  agreed  in  this  remarkable  proceeding 
that  if  the  judges  of  the  Circuit  Court  "  sitting  as  Commissioners,  and  not  as  £ouretrs  cf 
a  Circuit  Court,"  had  power  to  entertain  and  decide  the  case,  judgment  should  f^-^ 
be  given  for  the  defendant;  whereas,  if  the  Circuit  Court,  sitting  as  commis- 
sioners, was  not  authorized  to  have  taken  jurisdiction  and  to  adjudge  the 
original  case,  judgment  should  be  entered  against  Todd  for  the  sum  of 
$172.91  and  six  cents  costs.  Todd  appeared  by  distinguished  counsel  and 
the  case  was  argued  by  the  Attorney  General  on  behalf  of  the  United  States. 
In  the  following  passage  from  the  note  to  United  States  v.  Ferreira,  giving 
the  facts  and  the  decision  in  the  Todd  case,  Mr.  Chief  Justice  Taney  not  only 
states  the  decision  of  the  court  but  comments  upon  it : 

Chief  Justice  Jay  and  Justice  Cushing,  Wilson,  Blair,  and  Paterson, 
were  present  at  the  decision.  No  opinion  was  filed  stating  the  grounds  of 
the  decision.  Nor  is  any  dissent  from  the  judgment  entered  on  the  record. 
It  would  seem,  therefore,  to  have  been  unanimous,  and  that  Chief  Justice 
Jay  and  Justice  Cushing  became  satisfied,  on  further  reflection,  that  the 
power  given  in  the  act  of  1792  to  the  Circuit  Court  as  a  court,  could  not 
be  construed  to  give  it  to  the  judges  out  of  court  as  commissioners.  It 
must  be  admitted  that  the  justice  of  the  claims  and  the  meritorious  char- 
acter of  the  claimants  would  appear  to  have  exercised  some  influence  on  their 
judgments  in  the  first  instance,  and  to  have  led  them  to  give  a  construction 
to  the  law  which  its  language  would  hardly  justify  upon  the  most  liberal 
rules  of  interpretation. 

The  result  of  the  opinions  expressed  by  the  judges  of  the  Supreme  Court 
of  that  day  in  the  note  to  Hayburn's  case,  and  in  the  case  of  the  United 
States  v.  Todd,  is  this : 

1  That  the  power  proposed  to  be  conferred  on  the  Circuit  Courts  of 
the  United  States  by  the  act  of  1792  was  not  judicial  power  within  the  mean- 
ing of  the  Constitution,  and  was,  therefore,  unconstitutional,  and  could  not 
lawfully  be  exercised  by  the  courts. 

2.  That  as  the  act  of  Congress  intended  to  confer  the  power  on  the 
courts  as  a  judicial  function,  it  could  not  be  construed  as  an  authority  to  the 
judges  composing  the  court  to  exercise  the  power  out  of  court  in  the  char- 
acter of  commissioners.1 

1 13  Howard,  S2-3,  Note. 


354 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Further 

Distinction 

between 

Judicial 

and  Other 

Powers 


It  thus  appears  that  the  Supreme  Court  decided,  within  a  very  few  years 
after  its  institution,  as  it  has  since  held,  that  the  Federal  courts  could  only 
exercise  judicial  power;  and  the  decision  is  all  the  more  noteworthy,  as  the 
case  was  one  in  which  the  sympathy  of  the  judges  was  deeply  enlisted  and 
in  which  some  of  them  had  acted  as  individuals,  although  they  felt  that  they 
could  not  act  officially  as  judges. 

Two  further  cases,  dealing  with  the  general  attributes  of  judicial  as  dis- 
tinguished from  legislative  or  executive  power,  deserve  examination  in  this 
connection,  in  each  of  which  the  opinion  was  prepared  by  Chief  Justice 
Taney,  who  worthily  wore  the  mantle  of  the  great  Chief  Justice.  The  first 
case  to  be  considered  is  that  of  United  States  v.  Ferreira,  decided  in  1851, 
to  which  United  States  v.  Todd  was  appended  as  a  note.  This  case  grew  out 
of  the  treaty  of  February  22,  1819,  between  the  United  States  and  Spain,  by 
which  the  latter  country  ceded  Florida  to  the  United  States,  and  two  acts  of 
Congress  were  passed  in  order  to  give  effect  to  the  following  stipulation  con- 
tained in  that  treaty: 

The  United  States  shall  cause  satisfaction  to  be  made  for  the  injuries, 
if  any,  which  by  process  of  law  shall  be  established  to  have  been  suffered 
by  the  Spanish  officers  and  individual  Spanish  inhabitants  by  the  late  opera- 
tions of  the  American  army  in  Florida.1 

By  three  acts  of  Congress  of  1823,  1834  and  1849,  the  judge  of  the  ter- 
ritorial court  of  Florida,  and  later  the  judge  of  the  District  Court  of  the 
United  States  for  the  northern  district  of  Florida,  was  directed  to  receive, 
examine  and  adjudge  all  cases  and  claims  for  losses  and  to  report  his  decisions 
in  favor  of  the  claimants,  together  with  the  evidence  upon  which  they  were 
based,  to  the  Secretary  of  the  Treasury,  who  was  authorized  to  pay  to  the 
claimants  the  sum  awarded  to  them,  "  on  being  satisfied  that  the  same  is  just 
and  equitable,  within  the  provisions  of  the  treaty." 

It  will  be  observed  that  the  facts  of  the  case  bring  it  within  the  principle 
laid  down  in  United  States  v.  Todd,  which  has  just  been  considered,  a  fact 
not  lost  upon  the  Chief  Justice,  who  referred  to  Hayburn's  case  and  the 
opinion  of  the  judges  who  had  allowed  themselves  to  act  under  the  law  of 
Congress  relating  to  pensions.  But  the  court  evidently  considered  the  ques- 
tions involved  of  such  importance  as  to  justify  an  examination  of  the  case 
upon  its  merits  without  regard  to  precedent. 

In  the  first  place  the  Chief  Justice,  on  behalf  of  the  court,  analyzed  the 
acts  which  the  judge  was  obliged  to  perform  under  the  laws  of  Congress,  and, 
after  having  done  so,  indulged  in  comment  as  valuable  today  as  it  was  then. 
Thus: 


1 13  Howard,  40. 


THE    NATURE   OF   JUDICIAL   POWER  355 

It  is  manifest  that  this  power  to  decide  upon  the  validity  of  these  claims, 
is  not  conferred  on  them  as  a  judicial  function,  to  be  exercised  in  the  ordi- 
nary forms  of  a  court  of  justice.  For  there  is  to  be  no  suit;  no  parties  in 
the  legal  acceptance  of  the  term,  are  to  be  made  —  no  process  to  issue;  and 
no  one  is  authorized  to  appear  on  behalf  of  the  United  States,  or  to  summon 
witnesses  in  the  case.  The  proceeding  is  altogether  ex  parte;  and  all  that  the 
judge  is  required  to  do,  is  to  receive  the  claim  when  the  party  presents  it, 
and  to  adjust  it  upon  such  evidence  as  he  may  have  before  him,  or  be  able 
himself  to  obtain.  But  neither  the  evidence  nor  his  award,  are  to  be  filed 
in  the  court  in  which  he  presides,  nor  recorded  there;  but  he  is  required  to 
transmit,  both  the  decision  and  the  evidence  upon  which  he  decided,  to  the 
Secretary  of  the  Treasury ;  and  the  claim  is  to  be  paid  if  the  Secretary 
thinks  it  just  and  equitable,  but  not  otherwise.  It  is  to  be  a  debt  from  the 
United  States  upon  the  decision  of  the  Secretary,  but  not  upon  that  of  the 
judge.1 

Upon  these  facts  the  Chief  Justice  thus  commented: 

It  is  too  evident  for  argument  on  the  subject,  that  such  a  tribunal  is  not 
a  judicial  one,  and  that  the  act  of  Congress  did  not  intend  to  make  it  one. 
The  authority  conferred  on  the  respective  judges  was  nothing  more  than 
that  of  a  commissioner  to  adjust  certain  claims  against  the  United  States; 
and  the  office  of  judges,  and  their  respective  jurisdictions,  are  referred  to 
in  the  law,  merely  as  a  designation  of  the  persons  to  whom  the  authority  is 
confided,  and  the  territorial  limits  to  which  it  extends.  The  decision  is  not 
the  judgment  of  a  court  of  justice.  It  is  the  award  of  a  commissioner.  The 
act  of  1834  calls  it  an  award.  And  an  appeal  to  this  court  from  such  a 
decision,  by  such  an  authority  from  the  judgment  of  a  court  of  record, 
would  be  an  anomaly  in  the  history  of  jurisprudence.  An  appeal  might  as 
well  have  been  taken  from  the  awards  of  the  board  of  commissioners,  under 
the  Mexican  treaty,  which  were  recently  sitting  in  this  city.2 

The  Chief  Justice  was,  of  course,  aware  that  the  act  was  judicial,  as 
opposed  to  a  legislative,  executive  or  ministerial  act,  as  its  successful  per- 
formance involved  legal  principles  and  judicial  discretion.  But  he  was  of 
the  opinion  that  it  was  not  an  exercise  of  the  judicial  power  of  the  United 
States,  as  that  term  is  used  in  the  Constitution,  and  as  judicial  power  is  to 
be  exercised  in  courts  organized  in  pursuance  of  the  Constitution.  Indeed, 
he  himself  said: 

The  powers  conferred  by  these  acts  of  Congress  upon  the  judge  as  well 
as  the  Secretary,  are,  it  is  true,  judicial  in  their  nature.  For  judgment  and 
discretion  must  be  exercised  by  both  of  them.  But  it  is  nothing  more  than 
the  power  ordinarily  given  by  law  to  a  commissioner  appointed  to  adjust 
claims  to  lands  or  money  under  a  treaty ;  or  special  powers  to  inquire  into 
or  to  decide  any  other  particular  class  of  controversies  in  which  the  public 
or  individuals  may  be  concerned.  A  power  of  this  description  may  consti- 
tutionally be  conferred  on  a  Secretary  as  well  as  on  a  commissioner.    But  is 

1 13  Howard,  46-7. 

'  Ibid.,  47. 


356  THE   UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

not  judicial  in  either  case,  in  the  sense  in  which  judicial  power  is  granted 
by  the  Constitution  to  the  Courts  of  the  United  States.1 

The  second  case  to  which  reference  has  been  made  is  that  of  Gordon  v. 
United  States  (2  Wallace,  561),  decided  by  the  Supreme  Court  in  1864. 
Mr.  Chief  Justice  Taney  had  prepared  a  very  careful  opinion  on  the  ques- 
tion of  jurisdiction  involved  in  this  case,  but  he  died  before  the  decision 
was  announced,  and  the  opinion  which  he  had  written  and  communicated 
to  his  brethren  appears  to  have  been  mislaid  by  them;  but  a  copy,  later 
found  among  his  papers,  was,  by  direction  of  the  court,  printed  as  an 
appendix  to  117  U.  S.  Reports,  696-706.2  As  Mr.  Chief  Justice  Taney's 
opinion  is  on  a  subject  with  which  he  was  peculiarly  familiar,  and  inasmuch 
as  it  is  commonly  referred  to  as  the  authority  on  the  subject,  it  seems 
advisable  to  consider  the  case  at  some  length. 

The  plaintiff,  Gordon,  administrator  of  one  Fisher,  presented  a  petition 
in  the  Court  of  Claims  of  the  United  States  for  damages  done  to  Fisher 
by  troops  of  the  United  States  in  the  war  of  1812  with  Great  Britain.  The 
Court  of  Claims  decided  against  the  claim  and  Gordon  appealed  to  the 
Supreme  Court.  The  question  was  similar  to  but  not  identical  with  that 
in  the  Ferreira  case,  as  the  judgment  of  the  court  did  not  determine  the 
case  finally  but  made  the  payment  depend  upon  the  inclusion  of  the  claim 
in  the  Secretary's  estimate  and  upon  the  appropriation  of  the  estimated 
amount  by  the  Congress.  Under  an  act  of  Congress,  an  appeal  could  be 
taken  to  the  Supreme  Court  from  the  Court  of  Claims,  but  Mr.  Chief 
Justice  Taney  in  his  opinion,  and  the  court  in  its  judgment,  held  that  an 
appeal  would  not  lie  from  the  Court  of  Claims  in  this  instance,  because  that 
court  had  not  exercised  judicial  power  in  the  sense  of  the  Constitution,  and 
its  opinion,  therefore,  was  more  in  the  nature  of  an  award  than  a  judgment 
upon  which  an  appeal  would  lie  to  the  Supreme  Court ;  because,  in  either 
event,  the  Court  of  Claims  or  the  Supreme  Court  would  merely  certify  its 
opinion  to  the  executive  officer,  whose  action,  not  the  opinion  of  either 
court,  concluded  the  matter. 

'  13  Howard,  48. 

s  This  cause  was  submitted  on  the  18th  December,  1863.  On  the  4th  of  April,  1864,  the 
court  ordered  it  to  be  argued  on  the  second  day  of  the  following  December  Term.  Mr. 
Chief  Justice  Taney  had  prepared  an  opinion  expressing  his  views  upon  the  question  of 
jurisdiction.  This  he  placed  in  the  hands  of  the  clerk  in  vacation,  to  be  delivered  to  the 
judges  on  their  reassembling  in  December.  Before  the  judges  met  he  died.  The  clerk' 
complied  with  his  request.  It  is  the  recollection  of  the  surviving  members  of  the  court, 
that  this  paper  was  carefully  considered  by  the  members  of  the  court  in  reaching  the  con- 
clusion reported  in  2  Wall.  561 ;  and  that  it  was  proposed  to  make  it  the  basis  of  the  opinion, 
which,  it  appears  by  the  report  of  the  case,  was  to  be  subsequently  prepared.  The  paper 
was  not  restored  to  the  custody  of  the  clerk,  nor  was  the  proposed  opinion  ever  prepared. 
At  the  suggestion  of  the  surviving  members  of  the  court,  the  reporter  made  efforts  to  find 
the  missing  paper,  and,  having  succeeded  in  doing  so,  now  prints  it  with  their  assent.  (117 
U.  S.,  Appendix,  697.) 


THE    NATURE   OF   JUDICIAL    POWER  357 

In  speaking  of  the  nature  and  functions  of  the  Supreme  Court  and  the 
action  it  should  take  in  the  present  case,  Mr.  Chief  Justice  Taney  said : 

But  whether  this  Court  can  be  required  or  authorized  to  hear  an  appeal 
from  such  a  tribunal,  and  give  an  opinion  upon  it  without  the  power  of 
pronouncing  a  judgment,  and  issuing  the  appropriate  judicial  process  to 
carry  it  into  effect,  is  a  very  different  question,  and  rests  on  principles  alto- 
gether different.  The  Supreme  Court  does  not  owe  its  existence  or  its 
powers  to  the  Legislative  Department  of  the  Government.  It  is  created  by 
the  Constitution,  and  represents  one  of  the  three  great  divisions  of  power 
in  the  Government  of  the  United  States,  to  each  of  which  the  Constitution 
has  assigned  its  appropriate  duties  and  powers,  and  made  each  independent 
of  the  other  in  performing  its  appropriate  functions.  The  power  conferred 
on  this  court  is  exclusively  judicial,  and  it  cannot  be  required  or  authorized 
to  exercise  any  other.1 

After  quoting  the  first  section  of  Article  III  of  the  Constitution,  vesting  f^l^teioa 
the  judicial  power  of  the  United  States  in  the  Supreme  Court,  and  the  last 
clause  of  the  same  Article,  providing  that  "  The  Supreme  Court  shall  have 
appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions  and 
under  such  regulations  as  the  Congress  shall  make,"  the  Chief  Justice  thus 
continued,  in  language  peculiarly  appropriate  to  the  purposes  of  the  present 
essay : 

The  existence  of  this  Court  is,  therefore,  as  essential  to  the  organization 
of  the  government  established  by  the  Constitution  as  the  election  of  a  presi- 
dent or  members  of  Congress.  It  is  the  tribunal  which  is  ultimately  to 
decide  all  judicial  questions  confided  to  the  Government  of  the  United 
States.  No  appeal  is  given  from  its  decisions,  nor  any  power  given  to  the 
legislative  or  executive  departments  to  interfere  with  its  judgments  or 
process  of  execution.  Its  jurisdiction  and  powers  and  duties  being  defined 
in  the  organic  law  of  the  government,  and  being  all  strictly  judicial,  Con- 
gress cannot  require  or  authorize  the  court  to  exercise  any  other  jurisdic- 
tion or  power,  or  perform  any  other  duty.  Chancellor  Kent  says :  "  The 
judicial  power  of  the  United  States  is  in  point  of  origin  and  title  equal 
with  the  other  powers  of  the  government,  and  is  as  exclusively  vested  in  the 
court  created  by  or  pursuant  to  the  Constitution,  as  the  legislative  power 
is  vested  in  Congress,  or  the  Executive  power  in  the  President."  I  Kent. 
Com.,  209-291,  6th  ed.     See  also  Story  Const.,  pp.  449^50.2 

After  stating  the  elevated  and  indeed  the  unique  position  which  the  judi- 
cial power  occupies  in  the  American  system  of  government,  the  Chief  Jus- 
tice proceeded  to  discuss  the  reason  for  the  creation  of  this  power.     Thus : 

The  reason  for  giving  such  unusual  power  to  a  judicial  tribunal  is 
obvious.  It  was  necessary  to  give  it  from  the  complex  character  of  the 
Government  of  the  United  States,  which  is  in  part  National  and  in  part 

'117  U.  S.,  Appendix,  699-700. 
'  Ibid.,  p.  700. 


358  THE    UNITED    STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

Federal :  where  two  separate  Governments  exercise  certain  powers  of 
sovereignty  over  the  same  territory,  each  independent  of  the  other  within 
its  appropriate  sphere  of  action,  and  where  there  was,  therefore,  an  abso- 
lute necessity,  in  order  to  preserve  internal  tranquility,  that  there  should 
be  some  tribunal  to  decide  between  the  Government  of  the  United  States 
and  the  government  of  a  State  whenever  any  controversy  should  arise  as 
to  their  relative  and  respective  powers  in  the  common  territory.  The 
Supreme  Court  was  created  for  that  purpose,  and  to  insure  its  impartiality 
it  was  absolutely  necessary  to  make  it  independent  of  the  legislative  power, 
and  the  influence  direct  or  indirect  of  Congress  and  the  Executive.  Hence 
the  care  with  which  its  jurisdiction,  powers,  and  duties  are  defined  in  the 
Constitution,  and  its  independence  of  the  legislative  branch  of  the  govern- 
ment secured.1 

The  Chief  Justice  supports  his  contention  by  a  passage  from  the  39th 
number  of  The  Federalist  written  by  James  Madison,  in  which  he  says  that 
the  decision  is  to  be  made  impartially  and  that  every  precaution  is  to  be 
taken  in  order  to  secure  this  impartiality,  because,  to  quote  his  exact  lan- 
guage, "  some  such  tribunal  (as  the  Supreme  Court)  is  clearly  essential  to 
prevent  an  appeal  to  the  sword,  and  a  dissolution  of  the  compact."  2  Upon 
this  statement,  taking  the  passage  quoted  from  Mr.  Madison  as  a  point  of 
departure,  the  Chief  Justice  thus  continues : 

It  was  to  prevent  an  appeal  to  the  sword  and  a  dissolution  of  the  com- 
pact that  this  Court,  by  the  organic  law,  was  made  equal  in  origin  and 
equal  in  title  to  the  legislative  and  executive  branches  of  the  government : 
its  powers  defined,  and  limited,  and  made  strictly  judicial,  and  placed  there- 
fore beyond  the  reach  of  the  powers  delegated  to  the  Legislative  and 
Executive  Departments.  And  it  is  upon  the  principle  of  the  perfect  inde- 
pendence of  this  Court,  that  in  cases  where  the  Constitution  gives  it 
Original,  original  jurisdiction,  the  action  of  Congress  has  not  been  deemed  necessary 

to  regulate  its  exercise,  or  to  prescribe  the  process  to  be  used  to  bring  the 
parties  before  the  Court,  or  to  carry  its  judgment  into  execution.  The 
jurisdiction  and  judicial  power  being  vested  in  the  court,  it  proceeded  to 
prescribe  its  process  and  regulate  its  proceedings  according  to  its  own  judg- 
ment, and  Congress  has  never  attempted  to  control  or  interfere  with  the 
action  of  the  court  in  this  respect.3 

It  will  be  observed  that,  in  this  passage,  the  Chief  Justice  refers  to  the 
original  jurisdiction  of  the  court,  and  that  his  remarks  are  strictly  limited 
to  this  portion  of  its  jurisdiction;  for,  while  it  is  true  that,  in  the  exercise 
of  its  original  jurisdiction,  the  Supreme  Court  does  not  compel  a  State  to 
appear  before  it  nor,  hitherto  at  least,  by  force  compel  the  execution  of  a 
judgment  against  a  State,  the  Supreme  Court  can  and  does,  in  the  exercise 
of  appellate  jurisdiction,  compel  the  presence  of  individuals  before  it  and 

1  117  U.  S.,  Appendix,  pp.  700-1. 
■  The  Federalist,  1802,  Vol.  i,  p.  259. 
'  117  U.  S.,  Appendix,  701-2. 


THE    NATURE   OF   JUDICIAL    POWER 


359 


does  likewise  compel  the  execution  of  its  judgment  against  individuals  by  JJjJj    m3 
the  amount  of  force  required  to  secure  obedience  to  its  mandates.     After   individuals 
saying  that  an  inferior  court,  in  which  the  judicial  power  is  vested  but  from   ItateT'to 
which  an  appeal  lies  to  the  Supreme  Court,  can  only  be  a  judicial  tribunal   Appear 
authorized    to    render   a   judgment,    finally    deciding   the    rights    of    parties 
litigant  unless  appealed  from,  and  upon  which  execution  may  be  issued  to 
carry  the  judgment  into  effect,  the  Chief  Justice  goes  on  to  say  that  "  Con- 
gress cannot  extend  the  appellate  power  of  this  Court  beyond  the  limits  pre- 
scribed by  the  Constitution,  and  can  neither  confer  nor  impose  on  it  the 
authority  or  duty  of  hearing  and  determining  an  appeal  from  a  Commis- 
sioner or   Auditor,   or  any  other  tribunal   exercising  only   special   powers 
under  an  act  of  Congress;  nor  can  Congress  authorize  or  require  this  Court 
to  express  an  opinion  on  a  case  where  its  judicial  power  could  not  be  exer- 
cised, and  where  its  judgment  would  not  be  final  and  conclusive  upon  the 
rights  of  the  parties,  and  process  of  execution  awarded   to  carry  it  into 
effect." 

The  Chief  Justice  finally  insists  that  it  is  not  only  inherent  in  judicial 
power  to  decide  a  question  finally,  but  also  that  execution  shall  issue  to  carry 
the  judgment  into  effect,  and  that,  if  the  holding  of  the  court  be  not  final 
in  first  instance,  or  upon  appeal,  and  if  it  can  not  be  executed,  it  is  not  an 
exercise  of  the  judicial  power  in  the  sense  of  the  Constitution.  Thus,  he 
says: 

The  award  of  execution  is  a  part,  and  an  essential  part  of  every  judg- 
ment passed  by  a  court  exercising  judicial  power.  It  is  no  judgment,  in 
the  legal  sense  of  the  term,  without  it.  Without  such  an  award  the  judg- 
ment would  be  inoperative  and  nugatory,  leaving  the  aggrieved  party 
without  a  remedy.  It  would  be  merely  an  opinion,  which  would  remain  a 
dead  letter,  and  without  any  operation  upon  the  rights  of  the  parties, 
unless  Congress  should  at  some  future  time  sanction  it.  and  pass  a  law 
authorizing  the  court  to  carry  its  opinion  into  effect.  Such  is  not  the  judi- 
cial power  confided  to  this  Court,  in  the  exercise  of  its  appellate  jurisdic- 
tion: yet  it  is  the  whole  power  that  the  Court  is  allowed  to  exercise  under 
this  act  of  Congress.1 


In  the  concluding  passage  of  this  opinion,  which  can  not  be  too  often 
recommended  and  read,  the  Chief  Justice  calls  attention  to  the  fact  that  an 
attempt  on  the  part  of  the  Congress  or  of  the  government  to  invest  the 
courts  of  the  United  States  with  the  exercise  of  power  not  properly  included 
in  the  grant  of  judicial  power,  would  be  an  attempt  on  the  part  of  the  Gov- 
ernment to  infringe  upon  the  sovereignty  of  the  States  creating  the  Union, 
which  reserved  to  themselves  and  their  people  the  powers  not  directly  or 
indirectly  delegated  to  the  United  States.     Thus,  Mr.  Chief  Justice  Taney 

M17  U.  S.,  Appendix,  702. 


Sovereignty 
of   Si    ■ 

■  \ 


360 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Separation 
of  Powers 


said  in  the  last  opinion  which  he  was  destined  to  write  as  Chief  Justice  of 
the  Court  over  which  he  presided: 

The  Constitution  of  the  United  States  delegates  no  judicial  power  to 
Congress.  Its  powers  are  confined  to  legislative  duties,  and  restricted 
within  certain  prescribed  limits.  By  the  second  section  of  Article  VI.,  the 
laws  of  Congress  are  made  the  supreme  law  of  the  land  only  when  they 
are  made  in  pursuance  of  the  legislative  power  specified  in  the  Constitution ; 
and  by  the  Xth  amendment  the  powers  not  delegated  to  the  United  States 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively 
or  to  the  people.  The  reservation  to  the  States  respectively  can  only  mean 
the  reservation  of  the  rights  of  sovereignty  which  they  respectively  pos- 
sessed before  the  adoption  of  the  Constitution  of  the  United  States,  and 
which  they  had  not  parted  from  by  that  instrument.  And  any  legislation 
by  Congress  beyond  the  limits  of  the  power  delegated,  would  be  trespassing 
upon  the  rights  of  the  States  or  the  people,  and  would  not  be  the  supreme 
law  of  the  land,  but  null  and  void ;  and  it  would  be  the  duty  of  the  courts 
to  declare  it  so.  For  whether  an  act  of  Congress  is  within  the  limits  of 
its  delegated  power  or  not  is  a  judicial  question,  to  be  decided  by  the  courts, 
the  Constitution  having,  in  express  terms,  declared  that  the  judicial  power 
shall  extend  to  all  cases  arising  under  the  Constitution.1 

After  referring  to  the  separation  in  England  of  the  judicial  power  from 
the  legislative  and  executive,  he  thus  concludes : 

These  cardinal  principles  of  free  government  had  not  only  been  long 
established  in  England,  but  also  in  the  United  States  from  the  time  of  their 
earliest  colonization,  and  guided  the  American  people  in  framing  and 
adopting  the  present  Constitution.  And  it  is  the  duty  of  this  Court  to 
maintain  it  unimpaired  as  far  as  it  may  have  the  power.  And  while  it 
executes  firmly  all  the  judicial  powers  entrusted  to  it,  the  Court  will  care- 
fully abstain  from  exercising  any  power  that  is  not  strictly  judicial  in  its 
character,  and  which  is  not  clearly  confided  to  it  by  the  Constitution.2 


Finality  of 
the  Court's 

Decree 


In  In  re  Sanborn  (148  U.  S.,  222,  226),  decided  in  1893,  the  Supreme 
Court  had  occasion  to  recur  to  its  holding  in  the  Gordon  case,  and  in  so 
doing  it  referred  with  approval  to  Mr.  Chief  Justice  Taney's  opinion 
written  for  the  court  in  that  case.  It  is  therefore  unnecessary  to  state  the 
facts  in  In  re  Sanborn,  but  a  passage  from  the  unanimous  opinion  of  the 
Court  is  quoted  as  showing  that  that  tribunal,  upon  reconsideration  and 
argument,  insisted  upon  the  finality  of  decision  as  essential  to  judicial 
power.     Thus,  Mr.  Justice  Shiras,  in  speaking  for  the  court,  said : 

Such*  a  finding  is  not  made  obligatory  on  the  department  to  which  it 
is  reported — certainly  not  so  in  terms, — and  not  so,  as  we  think,  by  any 
necessary  implication.     We  regard  the  function  of  the  Court  of  Claims,  in 

1  117  U.  S.,  Appendix,  705. 
*  Ibid.,  706. 


THE    NATURE   OF   JUDICIAL    POWER  361 

such  a  case,  as  ancillary  and  advisory  only.  The  finding  or  conclusion 
reached  by  that  court  is  not  enforceable  by  any  process  of  execution  issu- 
ing from  the  court,  nor  is  it  made,  by  the  statute,  the  final  and  indisputable 
basis  of  action  either  by  the  department  or  by  congress. 

In  the  leading  case  of  Marbury  v.  Madison  (1  Cranch,  137,  177), 
decided  in  1803,  which  will  later  be  considered  at  length,  Mr.  Chief  Justice 
Marshall  said :  "  It  is  emphatically  the  province  and  duty  of  the  judicial 
department  to  say  what  the  law  is;"  and  to  decide  the  conflict  between 
competing  rules  of  law  is  "  of  the  very  essence  of  judicial  duty."  Some 
striking  examples  of  the  nature  of  judicial  power  have  already  been  stated 
in  the  English  cases  on  this  subject,  and,  incidentally,  in  passages  quoted 
from  decisions  of  the  Supreme  Court.  As,  however,  the  success  of  the 
great  experiment — for  the  Supreme  Court,  without  an  exact  model,  was  an 
experiment — was  due  to  the  fact  that,  in  the  exercise  of  judicial  power,  it 
has  kept  not  merely  departments  of  the  General  Government  within  the  meed 
of  power  granted  them  by  the  Constitution,  but  also  keeps  the  States  of  the 
Union  themselves  within  their  orbits,  it  is  advisable  in  this  connection  to  state 
the  reason  for  and  to  show  the  process  by  which  the  Supreme  Court  of  the 
United  States,  through  the  exercise  of  judicial  power,  necessarily  restrains 
the  acts  of  the  departments  of  the  General  Government  and  of  the  States 
within  those  limits  which  the  States  themselves  prescribed  in  the  Consti- 
tution. 

There  are  two  passages  from  the  Constitution  to  be  considered  in  this 
connection.  The  first,  to  be  dealt  with  later,  extends  the  judicial  power  to 
"  all  Cases,  in  Law  and  Equity,  arising  under  this  Constitution,  the  Laws  of 
the  United  States,  and  Treaties  made,  or  which  shall  be  made,  under  their 
Authority."  *  The  second  declares  "  this  Constitution  and  the  Laws  of  the 
United  States,"  made  as  in  the  first  passage,  "the  supreme  Law  of  the 
Land;  and  the  Judges  in  every  State  shall  be  bound  thereby,  any  Thing  in 
the  Constitution  or  Laws  of  any  State  to  the  Contrary  notwithstanding."  2 
It  will  be  observed  that,  while  the  Constitution  is  the  supreme  law  of  the 
land,  the  laws  of  the  United  States  are  only  to  be  considered  supreme  and 
binding  if  they  are  made  in  pursuance  of  the  Constitution,  for  it  might  be 
attempted  to  pass  laws  which  were  not  in  pursuance  of  that  instrument.  In 
this  latter  case  they  are  void,  because  the  grant  is  to  make  laws  in  accord- 
ance with,  not  inconsistent  with,  the  Constitution.  The  intention  of  the 
framers  to  have  the  judicial  power  pass  upon  and  determine  these  questions 
is  evident  in  extending  it  to  the  Constitution,  to  the  laws  of  the  United 
States,  and  to  the  treaties,  which  are  likewise  laws,  made  under  the  authority 
of  the  United  States,  and  by  requiring  judges  in  every  State  to  be  bound 

1  Art.  Ill,  Section  2,  of  the  Constitution. 
*  Art.  VI  of  the  Constitution. 


362  THE    UNITED    STATES  I    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

by  the  Constitution,  laws  of  the  United  States  made  in  pursuance  of  the 
Constitution  and  the  treaties  of  the  United  States. 

Experience  shows  that  men  can  not  safely  be  entrusted  with  interpreting, 
applying  and  executing  the  laws  which  they  themselves  have  made,  and  no 
man  can  in  reason  be  allowed  to  be  suitor,  judge  and  sheriff  in  his  own  case. 
There  is  indeed  a  presumption  that  the  legislature,  owing  its  existence  to 
the  Constitution,  will  restrain  its  acts  within  the  grant  of  power,  and  there 
may  also  be  a  presumption  that  the  executive  will  not  knowingly  exceed  the 
grant  of  power.  But  if  the  legislative  or  executive  department  should  deter- 
mine this  question  for  itself,  there  is  reason  to  believe,  and  indeed  to  fear, 
that  self-interest  might  enter  into  the  determination.  The  case  with  the 
judiciary  is  different.  The  court  does  not  make  the  law  which  it  interprets 
and  applies.  The  judge  is  not  a  party  to  the  case.  If  he  has  any  interest 
in  it,  he  can  be  challenged  and  disqualified.  And  he  does  not  himself 
execute  the  decision  which  he  has  rendered,  as  this  is  the  duty  of  the  execu- 
tive branch  of  the  government. 

But  the  framers  of  the  Constitution  did  not  need  to  rely  upon  unaided 
reason,  or  even  to  be  guided  by  the  dangers  suggested  by  experience.  As 
colonists  they  had  Deen  kept  by  the  King  in  Council,  acting  directly  or  indi- 
rectly through  a  committee,  within  the  sphere  of  the  grant  of  power  con- 
tained in  the  colonial  charters,  and  they  were  familiar  with  English  cases 
declaring  null  and  void  by-laws  of  a  corporation  in  excess  of  the  grant.  We 
would  therefore  expect  that  they  would  have  invested  the  judiciary  with 
this  power,  and  although  there  is  no  express  grant  of  this  function  or  attri- 
bute of  power  in  the  Constitution  other  than  the  words  which  have  been 
quoted,  it  is  a  fact  that  the  framers  of  the  Constitution  stated  in  the  debates, 
as  reported  by  Mr.  Madison,  that  the  Supreme  Court  would  exercise  this 
power,  and  it  is  also  a  fact  that  statements  of  a  like  kind  were  made  in  the 
Federalist,  which  was  written  by  Messrs.  Hamilton,  Madison  and  Jay  for 
the  purpose  of  securing  the  ratification  of  the  Constitution  of  the  United 
States  and  which  is  today  regarded  as  the  classical  and  contemporaneous 
exposition  of  the  Constitution.  It  is  further  a  fact  that  members  of  the 
State  conventions,  called  for  the  express  purpose  of  ratifying  the  Consti- 
tution, declared  that  the  Supreme  Court  possessed  such  power  under  the 
constitutional  grant.  And  it  is,  finally,  a  fact  that  the  Chief  Justice  who 
first  passed  upon  this  question,  and  who  rendered  the  classical  decision  in 
favor  of  the  judicial  power,  expressly  so  said  in  the  Virginia  convention. 

A  well  informed  and  accurate  writer  states  that,  among  the  fifty-five 
members  of  the  Constitutional  Convention,  there  were  "  twenty-five  whose 
character,  ability,  diligence  and  regularity  of  attendance,  separately  or  in 
combination,  made  them  the  dominant  element  in  the   Convention;  "  and 


THE    NATURE    OF   JUDICIAL    POWER  363 

that,  of  these  twenty-five,  "  seventeen  .  .  .  declared;  directly  or  indirectly, 
for  judicial  control."  *  To  these  are  also  to  be  added  two  members  not 
included  among  the  twenty-five,  who  expressed  themselves  in  favor  of  judi- 
cial control  by  deed  rather  than  by  word  of  mouth;  because  David  Brearly, 
a  delegate  from  New  Jersey  and  Chief  Justice  of  its  Supreme  Court,  had, 
it  is  believed,  supplied  an  early  if  not  the  first  instance  in  American  annals 
of  the  judicial  power  declaring  an  act  of  the  legislature  unconstitutional, 
as  inconsistent  with  the  fundamental  law  of  the  land,  in  the  case  of  Holmes 
v.  Walton,  decided  in  1780.  George  Wythe,  a  delegate  from  Virginia  and 
justice  of  the  Court  of  Appeals  of  his  State,  appears  to  have  said,  two 
years  later  (1782),  in  the  case  of  Commonwealth  v.  Caton  (4  Call,  5),  that 
an  act  of  the  legislature  of  Virginia  was  unconstitutional  for  a  like  reason. 
Elbridge  Gerry,  a  delegate  from  Massachusetts,  expressed  himself  strongly 
on  this  point  on  two  occasions.  In  the  matter  of  making  judges  members 
of  the  proposed  council  of  revision,  he  doubted  whether  the  judiciary  ought 
to  form  a  part  of  it  "  as  they  will  have  a  sufficient  check  agst.  encroachments 
on  their  own  department  by  their  exposition  of  the  laws,  which  involved  a 
power  of  deciding  on  their  Constitutionality.  In  some  States  the  Judges 
had  actually  set  aside  laws  as  being  agst.  the  Constitution.  This  was  done 
too  with  general  approbation.  It  was  quite  foreign  from  the  nature  of  y% 
office  to  make  them  judges  of  the  policy  of  public  measures."  2  On  a  second 
occasion  he  said : 

If  the  power  of  making  declaratory  acts  really  vests  in  Congress  and 
the  judges  are  bound  by  our  decisions,  we  may  alter  that  part  of  the  Con- 
stitution which  is  secured  from  being  amended  by  the  5th  article ;  .  .  . 
The  merchant  does  not  construe  the  Constitution  in  the  manner  that  we 
have  done.  He  therefore  institutes  a  suit  and  brings  it  before  the  supreme 
judicature  of  the  United  States  for  trial.  The  judges,  who  are  bound  by 
oath  to  support  the  Constitution,  declare  against  this  law ;  they  would  there- 
fore give  judgment  in  favor  of  the  merchant.3 

This  latter  statement  of  Mr.  Gerry  is  especially  noteworthy,  as  it  recognized 
the  power  and  method  in  which  it  is  exercised  at  the  suit  of  an  individual 
who  feels  himself  aggrieved  in  his  property  or  in  his  person. 

We  would  expect  to  have  Alexander  Hamilton  state  his  views  on  this 
very  important  and,  in  the  language  of  the  day,  interesting  question,  and 
we  are  not  disappointed.  In  the  78th  number  of  The  Federalist,  written  to 
advocate  the  revision  of  the  Constitution,  Colonel  Hamilton  said : 

There  is  no  position  which  depends  on  clearer  principles,  than  that 
every  act  of  a  delegated  authority,  contrary  to  the  tenor  of  the  commission 

1  Charles  A.  Beard,  The  Supreme  Court  and  the  Constitution,  1912,  pp.  17-18. 
'  Documentary  History,  Vol.  iii,  pp.  54-5.    Session  of  June  4th. 
"  Elliot,  Debates,  Vol.  iv,  p.  393. 


364  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

under  which  it  is  exercised,  is  void.  No  legislative  act,  therefore,  contrary 
to  the  constitution,  can  be  valid.  To  deny  this,  would  be  to  affirm,  that 
the  deputy  is  greater  than  his  principal ;  that  the  servant  is  above  his 
master;  that  the  representatives  of  the  people  are  superior  to  the  people 
themselves ;  that  men,  acting  by  virtue  of  powers,  may  do  not  only  what 
their  powers  do  not  authorize,  but  what  they  forbid.1 

And  in  a  later  passage  from  the  same  number,  he  says : 

The  interpretation  of  the  laws  is  the  proper  and  peculiar  province  of 
the  courts.  A  constitution  is,  in  fact,  and  must  be,  regarded  by  the  judges 
as  a  fundamental  law.  It  must  therefore  belong  to  them  to  ascertain  its 
meaning,  as  well  as  the  meaning  of  any  particular  act  proceeding  from  the 
legislative  body.  If  there  should  happen  to  be  an  irreconcilable  variance 
between  the  two,  that  which  has  the  superior  obligation  and  validity  ought, 
of  course,  to  be  preferred ;  in  other  words,  the  constitution  ought  to  be 
preferred  to  the  statute,  the  intention  of  the  people  to  the  intention  of 
their  agents.2 

In  addition  to  these  authoritative  pronouncements,  we  have  the  expres- 
sions of  opinion  of  two  men  made  in  the  convention  of  their  States,  both 
destined  to  be  Chief  Justices  of  the  Supreme  Court  of  the  United  States. 
Thus,  Oliver  Ellsworth,  who  had  been  a  member  of  the  Philadelphia  Con- 
vention, said: 

This  Constitution  defines  the  extent  of  the  powers  of  the  general  gov- 
ernment. If  the  general  legislature  should  at  any  time  overleap  their 
limits,  the  judicial  department  is  a  constitutional  check.  If  the  United 
States  go  beyond  their  powers,  if  they  make  a  law  which  the  Constitution 
does  not  authorize,  it  is  void ;  and  the  judicial  power,  the  national  judges, 
who,  to  secure  their  impartiality,  are  to  be  made  independent,  will  declare 
it  to  be  void.3 

The  other,  John  Marshall,  a  member  of  the  Virginian,  though  not  of  the 
Constitutional,  Convention,  bit  destined  to  be  the  great  expounder  of  the 
Constitution  from  the  bench,  said  in  the  course  of  the  debates  in  his  State 
Convention : 

Has  the  government  of  the  United  States  power  to  make  laws  on  every 
subject?  .  .  .  Can  they  make  laws  affecting  the  mode  of  transferring 
property,  or  contracts,  or  claims,  between  citizens  of  the  same  state?  Can 
they  go  beyond  the  delegated  powers?  If  they  were  to  make  a  law  not 
warranted  by  any  of  the  powers  enumerated,  it  would  be  considered  by 
the  judges  as  an  infringement  of  the  Constitution  which  they  are  to  guard. 
They  would  not  consider  such  a  law  as  coming  under  their  jurisdiction. 
They   would   declare   it  void.4 

1  The  Federalist,  1802,  Vol.  ii,  p.  212. 
'  Ibid.,  Vol.  ii.  pp.  212-13. 
•  Elliot,  Debates.  Vol.  ii,  p.  196. 
4  Ibid.,  Vol.  iii,  p.  553. 


THE    NATURE   OF   JUDICIAL    POWER  365 

These  expressions  of  opinion  before  the  Constitution  went  into  effect, 
are  of  importance  in  that  they  foreshadow  the  actions  of  courts  established 
under  the  Constitution  in  the  interpretation  and  application  of  judicial 
power  to  cases  brought  before  them  involving  the  Constitution,  laws  of  the 
United  States  made  in  pursuance  thereof,  and  treaties  concluded  by  the 
United  States  with  foreign  countries.  It  will  be  recalled  that,  in  a  letter 
addressed  to  the  President  under  date  of  April  18,  1792,  by  Messrs.  Wilson 
and  Blair,  Justices,  and  Judge  Peters  of  the  District  Court  of  Pennsylvania, 
they  referred  to  "  the  sentiments,  which,  on  a  late  painful  occasion,  gov- 
erned us,  with  regard  to  an  act  passed  by  the  legislature  of  the  union."  x 

This  is  conjectured  and  may  be  taken  as  established  by  Professor  Farrand 
in  an  interesting  note  on  the  first  Hayburn  case  to  be  the  application  of  one 
William  Hayburn  to  the  Circuit  Court  of  Pennsylvania  for  a  pension  under 
the  act  of  Congress  of  1792,  and  the  decision  of  the  court,  just  one  week 
before  the  date  of  the  letter,  that  such  act  was  unconstitutional  and  that  the 
judges  could  not  therefore  entertain  and  grant  the  application.  The  fol- 
lowing further  passage  from  the  letter  is  thought  by  Professor  Farrand  to 
refer  to  this  action  of  the  Circuit  Court: 

Upon  due  consideration,  we  have  been  unanimously  of  opinion,  that, 
under  this  act,  the  circuit  court,  held  for  the  Pennsylvania  district,  could 
not  proceed ;  ...  Be  assured,  that,  though  it  became  necessary,  it  was 
far  from  being  pleasant.  To  be  obliged  to  act  contrary  either  to  the 
obvious  directions  of  congress,  or  to  a  constitutional  principle,  in  our  judg- 
ment, equally  obvious,  excited  feelings  in  us,  which  we  hope  never  to 
experience  again.2 

The  reader  will  now  be  prepared  to  appreciate  the  brief  record  copied  from 
the  docket  of  the  Circuit  Court,  a  discovery  made  known  by  Professor 
Farrand : 

At  a  Circuit  Court  of  the  United  States  in  and  for  the  Pennsylvania 
District,  etc. 

11th  day  of  April,  1792,  before  Wilson,  Blair  and  Peters. 

The  petition  of  William  Hayburn,  was  read  and  after  due  deliberation 
thereupon  had  it  is  considered  by  the  Court  that  the  same  be  not  proceeded 
upon.3 

Three  years  later,  in  1795,  the  Circuit  Court  of  the  United  States  for 
the  District  of  Pennsylvania,  declared  an  act  of  that  State  to  be  null  and 
void,  as  repugnant  to  the  constitution  of   Pennsylvania,   in   Van  Home's 

1  See  ante,  p.  351. 

'  Max  Farrand,  The  First  Hayburn  Case,  1792,  American  Historical  Review,  Vol.  xiii, 
p.  283.     (January,   1908.) 
'  Ibid. 


366  THE    UNITED    STATES  I    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Lessee  v.  Dorrance  (2  Dallas,  304,  308,  309).  More  fortunate  than  Messrs. 
Wilson  and  Blair  in  the  Hayburn  case,  the  opinion,  or  rather  the  charge,  of 
Mr.  Justice  Patterson  has  been  preserved,  in  accordance  with  which  the  jury- 
rendered  its  verdict  and  the  court  its  judgment. 

In  the  course  of  his  charge,  Mr.  Justice  Patterson  had  occasion  to  refer 
to  the  origin  and  nature  of  a  constitution  and  the  relation  to  it  of  laws 
passed  by  a  legislature  under  a  constitutional  grant  of  power,  and  his  lan- 
guage is  applicable  to  the  constitution  of  any  state  where  the  American 
system  prevails.     Thus,  he  said : 

The  Constitution  is  the  work  or  will  of  the  People  themselves,  in  their 
original,  sovereign,  and  unlimited  capacity.  Law  is  the  work  or  will  of 
the  Legislature  in  their  derivative  and  subordinate  capacity.  The  one  is 
the  work  of  the  Creator,  and  the  other  of  the  Creature.  The  Constitution 
fixes  limits  to  the  exercise  of  legislative  authority,  and  prescribes  the 
orbit  within  which  it  must  move.  In  short,  gentlemen,  the  Constitution  is 
the  sun  of  the  political  system,  around  which  all  Legislative,  Executive  and 
Judicial  bodies  must  revolve.  Whatever  may  be  the  case  in  other  coun- 
tries, yet  in  this  there  can  be  no  doubt,  that  every  act  of  the  Legislature, 
repugnant  to  the  Constitution,  is  absolutely  void.    .    .    . 

The  Constitution  of  a  State  is  stable  and  permanent,  not  to  be  worked 
upon  by  the  temper  of  the  times,  nor  to  rise  and  fall  with  the  tide  of 
events:  notwithstanding  the  competition  of  opposing  interests,  and  the 
violence  of  contending  parties,  it  remains  firm  and  immoveable,  as  a  moun- 
tain amidst  the  strife  of  storms,  or  a  rock  in  the  ocean  amidst  the  raging 
of  the  waves.  I  take  it  to  be  a  clear  position;  that  if  a  legislative  act 
oppugns  a  constitutional  principle,  the  former  must  give  way,  and  be 
rejected  on  the  score  of  repugnance.  I  hold  it  to  be  a  position  equally  clear 
and  sound,  that,  in  such  case,  it  will  be  the  duty  of  the  Court  to  adhere  to 
the  Constitution,  and  to  declare  the  act  null  and  void.  The  Constitution 
is  the  basis  of  legislative  authority ;  it  lies  at  the  foundation  of  all  law,  and 
is  a  rule  and  commission  by  which  both  Legislators  and  Judges  are  to 
proceed.  It  is  an  important  principle,  which,  in  the  discussion  of  questions 
of  the  present  kind,  ought  never  to  be  lost  sight  of,  that  the  Judiciary  in 
this  country  is  not  a  subordinate,  but  co-ordinate,  branch  of  the  government.1 

Fifteen  years  later,  that  is  to  say,  in  1803,  after  having  his  experience 
at  the  bar  broadened  by  service  in  Congress,  as  Minister  to  France,  as  Sec- 
retary of  War  and  as  Secretary  of  State,  John  Marshall  was  called  upon, 
as  Chief  Justice  of  the  Supreme  Court,  to  decide  the  very  question  in  fact 
which  he  had  decided  in  theory  in  the  Constitutional  Convention  of  his 
State.  In  holding  that  the  original  jurisdiction  of  the  Supreme  Court  as 
stated  in  the  Constitution  could  neither  be  enlarged  nor  lessened  by  the 
Congress,  he  declared  on  behalf  of  the  court,  in  the  case  of  Marbury  v. 
Madison  (1  Cranch,  137),  an  act  of  Congress  unconstitutional  and  as  null 

'2  Dallas,  308-9. 


THE    NATURE   OF   JUDICIAL    POWER  367 

and  void,  which  attempted  to  enlarge  its  original  jurisdiction.     In  the  course 
of  his  opinion  he  said : 

The  question,  whether  an  act,  repugnant  to  the  constitution,  can  become 
the  law  of  the  land,  is  a  question  deeply  interesting  to  the  United  States ; 
but,  happily,  not  of  an  intricacy  proportioned  to  its  interest.  It  seems  only 
necessary  to  recognise  certain  principles,  supposed  to  have  been  long  and 
well  established,  to  decide  it. 

That  the  people  have  an  original  right  to  establish,  for  their  future  gov- 
ernment, such  principles  as,  in  their  opinion,  shall  most  conduce  to  their 
own  happiness  is  the  basis  on  which  the  whole  American  fabric  has  been 
erected.  The  exercise  of  this  original  right  is  a  very  great  exertion ;  nor 
can  it,  nor  ought  it,  to  be  frequently  repeated.  The  principles,  therefore, 
so  established,  are  deemed  fundamental.  And  as  the  authority  from  which 
they  proceed  is  supreme,  and  can  seldom  act,  they  are  designed  to  be 
permanent. 

This  original  and  supreme  will  organizes  the  government,  and  assigns 
to  different  departments  their  respective  powers.  It  may  either  stop  here, 
or  establish  certain  limits  not  to  be  transcended  by  those  departments. 

The  government  of  the  United  States  is  of  the  latter  description.  The 
powers  of  the  legislature  are  defined  and  limited ;  and  that  these  limits  may 
not  be  mistaken,  or  forgotten,  the  constitution  is  written.  To  what  purpose 
are  powers  limited,  and  to  what  purpose  is  that  limitation  committed  to 
writing,  if  these  limits  may,  at  any  time,  be  passed  by  those  intended  to  be 
restrained?  The  distinction  between  a  government  with  limited  and  unlim- 
ited powers  is  abolished,  if  those  limits  do  not  confine  the  persons  on  whom 
they  are  imposed,  and  if  acts  prohibited  and  acts  allowed,  are  of  equal 
obligation.  It  is  a  proposition  too  plain  to  be  contested,  that  the  consti- 
tution controls  any  legislative  act  repugnant  to  it ;  or,  that  the  legislature 
may  alter  the  constitution  by  an  ordinary  act.   .    .    . 

It  is  emphatically  the  province  and  duty  of  the  judicial  department  to 
say  what  the  law  is.  Those  who  apply  the  rule  to  particular  cases,  must 
of  necessity  expound  and  interpret  that  rule.  If  two  laws  conflict  with 
each  other,  the  courts  must  decide  on  the  operation  of  each. 

So  if  a  law  be  in  opposition  to  the  constitution ;  if  both  the  law  and  the 
constitution  apply  to  a  particular  case,  so  that  the  court  must  either  decide 
that  case  conformably  to  the  law,  disregarding  the  constitution;  or  con- 
formably to  the  constitution,  disregarding  the  law ;  the  court  must  determine 
which  of  these  conflicting  rules  governs  the  case.  This  is  of  the  very 
essence  of  judicial  duty. 

If,  then,  the  courts  are  to  regard  the  constitution,  and  the  constitution 
is  superior  to  any  ordinary  act  of  the  legislature,  the  constitution,  and  not 
such  ordinary  act,  must  govern  the  case  to  which  they  both  apply. 

Those,  then,  who  controvert  the  principle  that  the  constitution  is  to  be 
considered,  in  court,  as  a  paramount  law,  are  reduced  to  the  necessity  of 
maintaining  that  courts  must  close  their  eyes  on  the  constitution,  and  see 
only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all  written  consti- 
tutions. It  would  declare  that  an  act  which,  according  to  the  principles  and 
theory  of  our  government,  is  entirely  void,  is  yet,  in  practice,  completely 
obligatory.  It  would  declare  that  if  the  legislature  shall  do  what  is  expressly 
forbidden,  such  act,  notwithstanding  the  express  prohibition,  is  in  reality 


368  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

effectual.  It  would  be  giving  to  the  legislature  a  practical  and  real  omnipo- 
tence, with  the  same  breath  which  professes  to  restrict  their  powers  within 
narrow  limits.  It  is  prescribing  limits,  and  declaring  that  those  limits  may 
be  passed  at  pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the  greatest 
improvement  on  political  institutions — a  written  constitution — would  of 
itself  be  sufficient,  in  America,  where  written  constitutions  have  been 
viewed  with  so  much  reverence,  for  rejecting  the  construction.  But  the 
peculiar  expressions  of  the  constitution  of  the  United  States  furnish  addi- 
tional arguments  in  favor  of  its  rejection. 

The  judicial  power  of  the  United  States  is  extended  to  all  cases  arising 
under  the  constitution. 

Could  it  be  the  intention  of  those  who  gave  this  power,  to  say  that  in 
using  it  the  constitution  should  not  be  looked  into?  That  a  case  arising 
under  the  constitution  should  be  decided  without  examining  the  instrument 
under  which  it  arises? 

This  is  too  extravagant  to  be  maintained. 

In  some  cases,  then,  the  constitution  must  be  looked  into  by  the  judges. 
And  if  they  can  open  it  at  all,  wtiat  part  of  it  are  they  forbidden  to  read 
or  obey  ? l 

Two  further  cases  may  be  considered  in  this  connection,  McCulloch  v. 
Maryland  (4  Wheaton,  316),  decided  in  1819,  and  Collector  v.  Day  (11 
Wallace,  113),  decided  in  1870. 

For  present  purposes,  the  facts  in  McCulloch  v.  Maryland  may  be  stated 
as  an  attempt  on  the  part  of  the  State  of  Maryland,  by  act  of  its  legislature, 
to  impose  a  tax  upon  a  branch  of  the  bank  of  the  United  States  establish- 
ment in  that  State.  We  are  not  concerned  with  the  power  of  the  United 
States  to  establish  a  bank,  for,  although  the  power  to  create  a  corporation 
was  not  given  in  express  terms  to  the  Congress  by  the  Constitution,  and 
while  the  Congress  might  not  have  been  authorized  to  establish  a  corpora- 
tion as  such,  without  relation  to  powers  expressly  or  impliedly  granted, 
nevertheless  the  court  found  that  a  corporation  could  be  created,  such 
as  a  bank,  as  a  financial  or  fiscal  agent  of  the  United  States,  under 
the  authorization  to  Congress  to  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  powers  vested  in  the 
Congress. 

Admitting  the  power  to  create  the  bank  as  an  agency  of  the  government 
of  the  Union,  the  court  held  that  a  State  of  the  Union  could  not  tax  an 
agency  of  the  General  Government,  and  that  a  law  of  Maryland  attempting  to 
do  so  was  unconstitutional,  and  therefore  null  and  void,  inasmuch  as  the 
United  States  was  sovereign  and  could  therefore  lawfully  exercise  sovereign 
powers  within  the  limits  of  the  Constitution.  It  was  the  opinion  of  the 
court  that, 

1 1  Cranch,  175-9. 


THE    NATURE   OF   JUDICIAL    POWER 


369 


In  America,  the  powers  of  sovereignty  are  divided  between  the  govern- 
ment of  the  Union,  and  those  of  the  States.  They  are  each  sovereign,  with 
respect  to  the  objects  committed  to  it,  and  neither  sovereign  with  respect 
to  the  objects  committed  to  the  other.1 

These  were  not  idle  words  on  the  part  of  Mr.  Chief  Justice  Marshall. 
He  meant  what  he  said,  and,  recognizing  that  "  In  America,  the  powers  of 
sovereignty  are  divided  between  the  government  of  the  Union,  and  those  of 
the  States,"  the  Supreme  Court  held  the  reverse  to  be  true  in  the  case  of 
Collector  v.  Day  (11  Wallace,  113),  that  the  United  States  could  not,  under. 
the  Constitution,  tax  an  agent  of  the  States,  in  this  particular  instance  a 
judicial  officer  of  Massachusetts,  and  that  an  Act  of  Congress  attempting  to 
do  so  was  unconstitutional,  and  therefore  null  and  void.  In  delivering  the 
opinion  of  the  court,  Mr.  Justice  Nelson  referred  throughout  to  McCulloch 
v.  Maryland,  saying: 

It  is  conceded  in  the  case  of  McCulloch  v.  Maryland,  that  the  power  of 
taxation  by  the  States  was  not  abridged  by  the  grant  of  a  similar  power 
to  the  government  of  the  Union ;  that  it  was  retained  by  the  States,  and  that 
the  power  is  to  be  concurrently  exercised  by  the  two  governments ;  and 
also  that  there  is  no  express  constitutional  prohibition  upon  the  States 
against  taxing  the  means  or  instrumentalities  of  the  general  government. 
But,  it  was  held,  and,  we  agree  properly  held,  to  be  prohibited  by  neces- 
sary implication;  otherwise,  the  States  might  impose  taxation  to  an  extent 
that  would  impair,  if  not  wholly  defeat,  the  operations  of  the  Federal 
authorities  when  acting  in  their  appropriate  sphere.2 


That  the  United  States  could  not  tax  an  agency  of  the  State  would  seem  to 
be  as  clear  as  that  the  State  could  not  tax  an  agency  of  the  United  States, 
and  Mr.  Justice  Nelson,  speaking  for  the  court,  so  held  for  the  following 
reasons : 

It  is  a  familiar  rule  of  construction  of  the  Constitution  of  the  Union, 
that  the  sovereign  powers  vested  in  the  State  governments  by  their  respec-    Re^non 
tive  constitutions,  remained  unaltered  and  unimpaired,  except  so  far  as  they   to  the 
were  granted  to  the  government  of  the  United  States.     That  the  intention   fn°detonthc< 
of  the  framers  of  the  Constitution  in  this  respect  might  not  be  misunder-   States 
stood,  this  rule  of  interpretation  is  expressly  declared  in  the  tenth  article 
of   the   amendments,   namely :    "  The  powers   not  delegated   to   the   United 
States  are  reserved  to  the  States  respectively,  or,  to  the  people."    The  gov- 
ernment of  the  United   States,  therefore,  can  claim  no  powers  which  are 
not  granted  to  it  by  the  Constitution,  and  the  powers  actually  granted  must 
be  such  as  are  expressly  given,  or  given  by  necessary  implication. 

The  general  government,  and  the  States,  although  both  exist  within  the 
same  territorial  limits,  are  separate  and  distinct  sovereignties,  acting  sepa- 
rately and   independently  of   each  other,   within  their  respective   spheres. 

1  4  Wheaton,  410. 
Ml  Wallace,  123-4. 


370  THE    UNITED   STATES  I    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

The  former  in  its  appropriate  sphere  is  supreme;  but  the  States  within  the 
limits  of  their  powers  not  granted,  or,  in  the  language  of  the  tenth  amend- 
ment, "  reserved,"  are  as  independent  of  the  general  government  as  that 
government  within  its  sphere  is  independent  of  the  States.1 

It  is  indeed,  as  Mr.  Chief  Justice  Marshall  said,  "  the  province  and  duty 
of  the  judicial  department  to  say  what  the  law  is  "  and  that  it  is  "  of  the 
very  essence  of  judicial  duty  "  to  decide  the  conflict  between  competing  rules 
of  law.  But  the  judicial  power  of  the  United  States  was  not  meant  to  be 
and  is  not  the  agency  of  the  General  Government,  to  maintain  its  supremacy 
at  the  expense  of  the  States.  It  maintains  the  powers  which  the  States,  in 
their  common  interest,  freely  granted  to  the  agency  of  their  creation,  which 
we  call  the  United  States,  and  protects  it  from  assault  by  one  of  the  States 
in  its  own  interest.  On  the  other  hand,  it  maintains  the  rights  of  the  States 
not  granted  by  them  to  the  Government  of  the  Union,  but,  in  the  language 
of  the  10th  Amendment,  "  reserved  to  the  States  respectively,  or  to  the 
people  "  against  assault  of  that  Government  in  the  unconstitutional  exercise 
of  power.  As  Chief  Justice  Chase  said  in  the  great  and  leading  case  of 
Texas  v.  White  (7  Wallace,  700,  725),  decided  in  1868,  at  a  time  when  the 
existence  of  the  States  depended  upon  the  correct  interpretation  of  the  judi- 
cial power  of  the  United  States: 

..."  the  people  of  each  State  compose  a  State,  having  its  own  gov- 
ernment, and  endowed  with  all  the  functions  essential  to  separate  and  inde- 
pendent existence,"  and  that  "  without  the  States  in  union,  there  could  be 
no  such  political  body  as  the  United  States."  [County  of  Lane  v.  The 
State  of  Oregon,  7  Wall.  76.]  Not  only,  therefore,  can  there  be  no  loss 
of  separate  and  independent  autonomy  to  the  States,  through  their  union 
under  the  Constitution,  but  it  may  be  not  unreasonably  said  that  the  pres- 
ervation of  the  States,  and  the  maintenance  of  their  governments,  are  as 
much  within  the  design  and  care  of  the  Constitution  as  the  preservation  of 
the  Union  and  the  maintenance  of  the  National  government.  The  Consti- 
tion,  in  all  its  provisions,  looks  to  an  indestructible  Union,  composed  of 
indestructible  States. 

A  difficulty  standing  in  the  creation  of  an  international  court  of  justice  has 
been,  and  appears  still  to  be,  the  difficulty  of  distinguishing  judicial  from 
political  power.  There  appears  to  be  a  willingness  to  create  an  international 
judiciary,  reserving,  however,  the  right  of  each  State  in  controversy,  to 
determine  whether  the  question  involved  is  or  is  not  political. 

The  experience  of  the  United  States  shows  that  this  question  can  properly 
be  determined  by  a  court,  because  in  a  long  line  of  decisions  the  Supreme 
Court  of  the  United  States  has  not  only  been  able  to  draw  the  line  with 
precision,  but  also  to  the  satisfaction  of  the  litigating  parties. 

The  nature  of  judicial  power  should,  therefore,  be  clear  to  those  who  really 
care  to  unveil  its  mysteries. 
•  11  Wallace,  124. 


XVIII 
POWERS  OF  THE  SUPREME  COURT 

I  directed  this  cause  to  stand  over  for  judgment,  not  so  much  from  any  doubt  of  what 
was  the  justice  of  the  case,  as  by  reason  of  the  nature  of  it,  the  great  consequence  and 
importance,  and  the  great  labour  and  ability  of  the  argument  on  both  sides ;  it  being  for 
the  determination  of  the  right  and  boundaries  of  two  great  provincial  governments  and 
three  counties;  of  a  nature  worthy  the  judicature  of  a  Roman  senate  rather  than  of  a 
single  judge:  and  my  consolation  is,  that  if  I  should  err  in  my  judgment,  there  is  a  judica- 
ture equal  in  dignity  to  a  Roman  senate  that  will  correct  it.     .    . 

The  relief  prayed  must  be  admitted  to  be  the  common  and  ordinary  equity  dispensed 
by  this  court;  the  specific  performance  of  agreements  being  one  of  the  great  heads  of 
this  court,  and  the  most  useful  one,  and  better  than  damages  at  law,  so  far  as  relates  to 
the  thing  in  specie;  and  more  useful  in  a  case  of  this  nature  than  in  most  others;  because 
no  damages  in  an  action  of  covenant  could  be  at  all  adequate  to  what  is  intended  by  the 
parties,  and  to  the  utility  to  arise  from  this  agreement,  vie.  the  settling  and  fixing  these 
boundaries  in  peace,  to  prevent  the  disorder  and  mischief,  which  in  remote  countries, 
distant  from  the  seat  of  government,  are  most  likely  to  happen,  and  most  mischievous. 
Therefore  the  remedy  prayed  by  a  specific  performance  is  more  necessary  here  than  in 
other  cases:  provided  it  is  proper  in  other  respects:  and  the  relief  sought  must  prevail, 
unless  sufficient  objections  are  shewn  by  defendant;  who  has  made  many  and  various 
for  that  purpose.   .    .    . 

.  .  .  This  court  therefore  has  no  original  jurisdiction  on  the  direct  question  of  the 
original  right  of  the  boundaries;  and  this  bill  does  not  stand  in  need  of  that.  It  is  founded 
on  articles  executed  in  England  under  seal  for  mutual  consideration;  which  gives  juris- 
diction to  the  King's  courts  both  of  law  and  equity,  whatever  be  the  subject  matter.  .  . 
The  conscience  of  the  party  was  bound  by  this  agreement;  and  being  within  the  juris- 
diction of  this  court  (4  Inst.  213;  1  Ves.  sen.  204,  255),  which  acts  in  personam,  the  court 
may  properly  decree  it  as  an  agreement,  if  a  foundation  for  it.  To  go  a  step  farther: 
as  this  court  collaterally  and  in  consequence  of  the  agreement  judges  concerning  matters 
not  originally  in  its  jurisdiction,  it  would  decree  a  performance  of  articles  of  agreement 
to  perform  a  sentence  in  the  Ecclesiastical  court,  just  as  a  court  of  law  would  maintain 
an  action  for  damages  in  breach  of  covenant.  (Lord  Chancellor  Hardwicke  in  Perm  v. 
Lord  Baltimore,  i  Vesey,  Sr.,  444,  446-448,  decided  in  1750,  English  Reports,  Full  Reprint, 
Vol.  XXVII,  Chancery  VII,  1903,  pp.  U33-U35) 

We  are  all  satisfied,  that  the  bill  must  be  dismissed.  It  is  a  case  of  mutual  treaty 
between  persons  acting  in  that  instance  as  states  independent  of  each  other ;  and  the 
circumstance,  that  the  East  India  Company  are  mere  subjects  with  relation  to  this  country, 
has  nothing  to  do  with  that  That  treaty  was  entered  into  with  them,  not  as  subjects,  but 
as  a  neighbouring  independent  state,  and  is  the  same,  es  if  it  was  a  treaty  between  two 
sovereigns;  and  consequently  is  not  a  subject  of  private,  municipal,  jurisdiction.  (Barclay  v. 
Russell,  3  Ves.  424.     Dolder  v.  Lord  Huntingfield,  9  Ves.  283.) 

The  Court  considers  the  case  totally  independent  of  the  judgment,  the  Lord  Chancellor 
pronounced :  for  the  case,  upon  which  the  Court  proceeds,  is  introduced  by  the  answer, 
which  has  added  a  great  number  of  particulars  to  the  case  by  introducing  the  other  treaty, 
winch  explains  the  first;  and  shews,  it  was  not  mercantile  in  its  nature,  but  political;  and 
therefore  this  decision  stands  wholly  clear  of  the  judgment  upon  the  plea.  (Lord  Commis- 
sioner Eyre  in  Nabob  of  the  Carnatic  v.  East  India  Company,  2  Vesey,  Jr.,  56,  60,  decided 
in  1793,  English  Reports,  Full  Reprint,  Vol.  XXX,  Chancery  X,  1903,  p. 523.) 

If  the  bill  contains  no  averment  of  a  right  of  soil  in  New-York,  I  think  it  must  be 
defective,  and  lays  no  foundation  for  an  injunction.  To  have  the  benefit  of  the  agreement 
between  the  states,  the  defendants  below  (who  are  the  settlers  of  New-York)  must  apply 
to  a  court  of  equity  as  well  as  the  state  herself;  but,  in  no  case,  can  a  specific  performance 
be  decreed,  unless  there  is  a  substantial  right  of  soil,  not  a  mere  political  jurisdiction,  to 
be  protected  and  enforced.  (Chief  Justice  Ellsivorlh  in  State  of  New  York  v.  State  of 
Connecticut,  4  Dallas,  3,  4,  note,  decided  in  1799.) 

371 


372  THE  UNITED  STATES:  A  STUDY  IN  INTERNATIONAL  ORGANIZATION 

It  is  emphatically  the  province  and  duty  of  the  judicial  department  to  say  what  the  law 
is.  Those  who  apply  the  rule  to  particular  cases,  must  of  necessity  expound  and  interpret 
that  rule.  If  two  laws  conflict  with  each  other,  the  courts  must  decide  on  the  operation  of 
each. 

So  if  a  law  be  in  opposition  to  the  constitution;  if  both  the  law  and  the  constitution 
apply  to  a  particular  case,  so  that  the  court  must  either  decide  that  case  conformably  to  the 
law,  disregarding  the  constitution;  or  conformably  to  the  constitution,  disregarding  the  law; 
the  court  must  determine  which  of  these  conflicting  rules  governs  the  case  This  is  of  the 
very  essence  of  judicial  duty.  (Chief  Justice  Marshall  in  Marbury  v.  Madison,  I  Cranch, 
137,  177-178,  decided  in  1S03.) 

A  serious  additional  objection  exists  to  the  jurisdiction  of  the  court  Is  the  matter  of 
the  bill  the  proper  subject  for  judicial  inquiry  and  decision?  It  seeks  to  restrain  a  state 
from  the  forcible  exercise  of  legislative  power  over  a  neighbouring  people,  asserting  their 
independence;  their  right  to  which  the  state  denies.     .     . 

.  .  .  The  bill  requires  us  to  control  the  legislature  of  Georgia,  and  to  restrain  the  ex- 
ertion of  its  physical  force.  The  propriety  of  such  an  interposition  by  the  court  may  be 
well  questioned.  It  savours  too  much  of  the  exercise  of  political  power  to  be  within  the 
proper  province  of  the  judicial  department  (Chief  Justice  Marshall  in  Cherokee  Nation 
v.  State  of  Georgia,  5  Peters,  I,  20,  deeded  in  1831.) 

In  council,  the  king  had  no  original  judicial  power,  1  Ves.  sen.  447.  He  decided  on 
appeals  from  the  colonial  courts,  settled  boundaries,  in  virtue  of  his  prerogative,  where 
there  was  no  agreement ;  but  if  there  is  a  disputed  agreement,  the  king  cannot  decree  on 
it.  and  therefore,  the  council  remit  it  to  be  determined  in  another  place,  on  the  foot  of 
the  contract,  1  Ves.  sen.  447.  In  virtue  of  his  prerogative,  where  there  was  no  agree- 
ment, 1  Ves.  sen.  205,  the  king  acts  not  as  a  judge,  but  as  the  sovereign  acting  by  the  advice 
of  his  counsel,  the  members  whereof  do  not  and  cannot  sit  as  judges.  By  the  statute  20 
E.  3,  ch.  1,  it  is  declared,  that  "  the  king  hath  delegated  his  whole  judicial  power  to  the 
judges,  all  matters  of  judicature  according  to  the  laws,"  1  Ruff  246;  4  Co.  Inst.  70,  74; 
he  had,  therefore,  none  to  exercise:  and  judges,  though  members  of  council,  did  not  sit 
in  judicature,  but  merely  as  his  advisers.    .    . 

If  judicial  authority  is  competent  to  settle  what  is  the  line  between  judicial  and 
political  power  and  questions,  it  appears  from  this  view  of  the  law,  as  administered  in 
England  and  the  courts  of  the  United  States,  to  have  been  done  without  any  one  decision 
to  the  contrary,  from  the  time  of  Edward  the  Third.  The  statute  referred  to,  operated 
like  our  constitution  to  make  all  questions  judicial,  which  were  submitted  to  judicial  power, 
by  the  parliament  of  England,  the  people  or  legislature  of  these  states,  or  congress;  and 
when  this  has  been  done  by  the  constitution,  in  reference  to  disputed  boundaries,  it  will 
be  a  dead  letter  if  we  did  not  exercise  it  now,  as  this  Court  has  done  in  the  cases  referred 
to.  (Mr.  Justice  Baldzvin  in  State  of  Rhode  Island  v.  State  of  Massachusetts,  12  Peters, 
657,  739-748,  decided  in  1838.) 

A  motion  has  been  made  by  the  counsel  for  the  defendants  to  dismiss  the  bill  for  want 
of  jurisdiction,  for  which  a  precedent  is  found  in  the  case  of  The  State  of  Rhode  Island  v. 
The  State  of  Massachusetts.  It  is  claimed  that  the  court  has  no  jurisdiction  either  over 
the  subject-matter  set  forth  in  the  bill  or  over  the  parties  defendants.  And,  in  support  of 
the  first  ground,  it  is  urged  that  the  matters  involved,  and  presented  for  adjudication,  are 
political  and  not  judicial,  and,  therefore,  not  the  subject  of  judicial  cognizance. 

This  distinction  results  from  the  organization  of  the  government  into  the  three  great 
departments,  executive,  legislative,  and  judicial,  and  from  the  assignment  and  limitation  of 
the  powers  of  each  by  the  Constitution. 

The  judicial  power  is  vested  in  one  supreme  court,  and  in  such  inferior  courts  as  Con- 
gress may  ordain  and  establish :  the  political  power  of  the  government  in  the  other  two 
departments. 

The  distinction  between  judicial  and  political  power  is  so  generally  acknowledged  in 
the  jurisprudence  both  of  England  and  of  this  country,  that  we  need  do  no  more  than  refer 
to  some  of  the  authorities  on  the  subject.  They  are  all  in  one  direction.  Nabob  of  Car- 
natic  v.  The  East  India  Co.,  1  Vesey,  Jr.,  375-393,  S.  C,  2  Id.  56-60;  Penn  v.  Lord  Balti- 
more, 1  Vesey,  446-7;  New  York  v.  Connecticut,  4  Dallas,  4-6;  The  Cherokee  Nation  v. 
Georgia,  5  Peters,  1,  20,  29,  30,  51,  75;  The  State  of  Rhode  Island  v.  The  State  of  Massa- 
chusetts, 12  lb.,  657,  733,  734,  737,  738.  (Aflr.  Justice  Nelson  in  Georgia  v.  Stanton,  6  Wallace, 
50,  71,  decided  in  1867.) 

The  position  and  rank,  therefore,  assigned  to  this  Court  in  the  Government  of  the 
United   States,  differ  from  that  of   the  highest  judicial  power  in   England,  which  is  sub- 


POWERS    OF    THE    SUPREME    COURT 


373 


ordinate  to  the  legislative  power,  and  bound  to  obey  any  law  that  Parliament  may  pass, 
although  it  may,  in  the  opinion  of  the  court,  be  in  conflict  with  the  principles  of  Magna 
Charta  or  the  Petition  of  Rights. 

The  reason  for  giving  such  unusual  power  to  a  judicial  tribunal  is  obvious.  It  was 
necessary  to  give  it  from  the  complex  character  of  the  Government  of  the  United  States, 
which  is  in  part  National  and  in  part  Federal :  where  two  separate  governments  exercise 
certain  powers  of  sovereignty  over  the  same  territory,  each  independent  of  the  other  within 
its  appropriate  sphere  of  action,  and  where  there  was,  therefore,  an  absolute  necessity,  in 
order  to  preserve  internal  tranquillity,  that  there  should  be  some  tribunal  to  decide  between 
the  Government  of  the  United  States  and  the  government  of  a  State  whenever  any  con- 
troversy should  arise  as  to  their  relative  and  respective  powers  in  the  common  territory. 
The  Supreme  Court  was  created  for  that  purpose,  and  to  insure  its  impartiality  it  was 
absolutely  necessary  to  make  it  independent  of  the  legislative  power,  and  the  influence  direct 
or  indirect  of  Congress  and  the  Executive.  Hence  the  care  with  which  its  jurisdiction, 
powers,  and  duties  are  defined  in  the  Constitution,  and  its  independence  of  the  legislative 
branch  of  the  government  secured.  (Chief  Justice  Taney  in  Gordon  v.  United  States, 
117    United  States,  697,  700-701,  decided  in  1864.) 

It  was  to  prevent  an  appeal  to  the  sword  and  a  dissolution  of  the  compact  that  this 
Court,  by  the  organic  law,  was  made  equal  in  origin  and  equal  in  title  to  the  legislative  and 
executive  branches  of  the  government :  its  powers  defined,  and  limited,  and  made  strictly 
judicial,  and  placed  therefore  beyond  the  reach  of  the  powers  delegated  to  the  Legislative 
and  Executive  Departments.  (Chief  Justice  Taney  in  Gordon  v.  United  States,  117  United 
States,  607,  701,  decided  in  1864.) 

The  legal  supremacy  of  the  constitution  is  essential  to  the  existence  of  the  state;  the 
glory  of  the  founders  of  the  United  States  is  to  have  devised  or  adopted  arrangements 
under  which  the  Constitution  became  in  reality  as  well  as  namethe  supreme  law  of  the 
land.  This  end  they  attained  by  adherence  to  a  very  obvious  principle,  and  by  the  invention 
of  appropriate  machinery  for  carrying  this  principle  into   effect. 

The  principle  is  clearly  expressed  in  the  Constitution  of  the  United  States.  "The 
Constitution,"  runs  article  6,  "  and  the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof  .  .  .  shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding"     The  import  of  these  expressions  is  unmistakable.     .     . 

To  have  laid  down  the  principle  with  distinctness  is  much,  but  the  great  problem  was 
how  to  ensure  that  the  principle  should  be  obeyed;  for  there  existed  a  danger  that  judges 
depending  on  the  federal  government  should  wrest  the  Constitution  in  favour  of  the  central 
power,  and  that  judges  created  by  the  States  should  wrest  it  in  favour  of  State  rights  or 
interests.  This  problem  has  been  solved  by  the  creation  of  the  Supreme  Court  and  of  the 
Federal  Judiciary  (Albert  V-enn  Dicey,  Introduction  to  the  Study  of  the  Law  of  the  Con- 
stitution, 1885,  8th  edition,  1015,  pp.  154-155.) 


CHAPTER  XVIII 


POWERS   OF  THE  SUPREME   COURT 


In  settling  the  jurisdiction  of  the  Supreme  Court,  the  draft  of  the  Con- 
stitution as  it  left  the  hands  of  the  Committee  of  Detail  provided — in  the 
3d  section  of  its  11th  article,  that  "the  Jurisdiction  of  the  Supreme  Court 
shall  extend  to  all  cases  arising  under  laws  passed  by  the  Legislature  of  the 
United  States."  That  the  court  should  possess  and  that  it  should  only  exer- 
cise judicial  power  was  the  intent  of  the  framers  of  the  Constitution,  as 
plainly  indicated  by  the  following  passage  from  Mr.  Madison's  Notes: 


Determina- 
tion of 
Constitu- 
tionality 


Docr.  Johnson  moved  to  insert  the  words  "  this  Constitution  and  the  " 
before  the  word  "  laws." 

Mr.  Madison  doubted  whether  it  was  not  going  too  far  to  extend  the 
jurisdiction  of  the  Court  generally  to  cases  arising  Under  the  Constitution, 
&  whether  it  ought  not  to  be  limited  to  cases  of  a  Judiciary  Nature.  The 
right  of  expounding  the  Constitution  in  cases  not  of  this  nature  ought  not 
to  be  given  to  that  Department. 

The  motion  of  Docr.  Johnson  was  agreed  to  nem :  con :  it  being  generally 
supposed  that  the  jurisdiction  given  was  constructively  limited  to  cases  of 
a  Judiciary  nature. 

And,  that  there  might  be  no  doubt  on  this  point,  Mr.  Madison  moved  that 
the  phrase  "the  jurisdiction  of  the  Supreme  Court"  should  be  stricken  and 
replaced  by  the  words  "Judicial  power,"  which,  as  Mr.  Madison  records, 
"  was  agreed  to  nem :  con :  "  1 

The  framers  of  the  Constitution  were  clear  in  their  minds  as  to  the  func- 
tion of  the  Supreme  Court.  The  Government  of  the  Union  as  well  as  the 
Union  itself,  owes  its  existence  to  the  Constitution,  and  that  instrument  is 
at  once  the  source  and  measure  of  power  which  these  United  States  can 
lawfully  exercise.  Laws  in  accordance  with  it  are  constitutional,  laws 
inconsistent  with  it  are  unconstitutional,  whether  they  be  laws  of  the  Con- 
gress, constitutions  or  laws  of  the  States  of  the  Union. 

To  determine  these  questions  is  important,  often  difficult,  and  as  deli- 
cate as  difficult.  The  power  to  do  so  must  be  lodged  somewhere.  The  legis- 
lature can  not  decide  whether  its  act  is  proper,  because  so  to  do  would 
subordinate  the  Constitution  to  its  creature.     The  executive  can  not  decide 

'Documentary    History    of    the    Constitution,    Vol.    Ill,    pp.    626,    627.      Session    of 
August  27th. 

374 


POWERS    OF   THE   SUPREME    COURT  375 

finally,  although  he  may  exercise  a  veto  upon  legislation,  because  to  do  so 
would  subordinate  the  Constitution  to  his  will  or  pleasure.  The  framers  of 
the  Constitution,  therefore,  confided  the  determination  of  these  questions 
to  the  judicial  power  by  extending  it  "  to  all  cases  in  law  and  equity  arising 
under  this  Constitution,  the  laws  of  the  United  States  and  treaties  made  or 
which  shall  be  made  under  their  authority."  And,  that  there  might  be  no  » 
doubt  upon  this  fundamental  question,  they  provided,  in  Article  6,  that 
"  This  Constitution  and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof;  and  all  treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law  of  the  land;  and 
the  judges  in  every  State  shall  be  bound  thereby,  anything  in  the  constitu- 
tion or  laws  of  any  State  to  the  contrary  notwithstanding." 

Upon  this  section  two  observations  may  be  made  at  this  time :  first,  the 
Constitution  is  supreme,  an  equality  only  shared  by  the  laws  of  the  United 
States  made  in  pursuance  thereof  and  by  treaties  of  the  United  States; 
second,  that  the  judges  of  the  States,  in  interpreting  laws,  are  to  be  bound 
by  the  supreme  law  of  the  land. 

No  authority  need  be  cited  for  the  statement  that  the  interpretation  of 
a  written  instrument  is  a  judicial  question.  The  colony  was  bound  by  its 
charter,  and  all  acts  of  the  colony  or  colonists  in  excess  of  the  charter  as 
authoritatively  interpreted,  were  void.  The  Constitution  was  to  be  the 
charter  of  the  erstwhile  colonies,  now  States  of  the  Union,  and  all  acts  in 
excess  of  the  powers,  directly  or  indirectly  granted  to  the  Government  of 
the  Union,  were  to  be  null  and  void.  In  the  case  of  the  colony,  the  King  in 
Council  decided;  in  the  case  of  the  Union,  the  Supreme  Court  of  the  States. 

It  was  therefore  essential  that  the  judicial  power  should  not  be  associated 
in  the  labors  of  the  executive  or  legislative  branch.  The  judges  should  not 
be  members  of  the  proposed  but  unadopted  Council  to  revise  the  laws  of  the 
States,  nor  should  they  be  members  of  an  advisory  council  to  the  executive; 
for  they  could  not  be  expected  to  pass  upon  the  actions  of  one  or  the  other 
in  a  spirit  of  detachment,  if  they  had  been  directly,  or,  indeed,  indirectly, 

Powers 

concerned  with  either.     Therefore,  the  judsres  should  hold  the  scales  of  jus-   Purely 

■  i  Judicial 

tice  firmly  in  their  hands,  lest  the  legislative  or  executive  should  tip  the  bal- 
ance against  the  Constitution.  The  functions  of  the  judges  were  to  be  and 
to  remain  judicial,  and  the  judicial  power,  therefore,  was  to  stand  separate 
and  apart  from  the  legislative  and  the  executive  branches,  which,  in  con- 
tradistinction to  the  judiciary,  can  be  called  the  political  branches  of  the 
Government. 

In  the  exercise  of  their  respective  powers,  the  legislative  and  the  execu- 
tive could  not  be  subject  to  the  judiciary,  because  the  exercise  of  a  right 
depends  upon  the  body  possessing  it.    It  may  decide  wisely  or  unwisely,  but, 


376 


THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Political 

Contrasted 

with 

Judicial 

Powers 


having  the  power  to  decide,  it  necessarily  must  determine  when  it  shall  or 
shall  not  make  a  use  of  this  power.  The  function  of  the  judiciary  can  only 
be  to  determine,  not  the  wisdom  or  the  folly  of  the  exercise  of  power,  but 
whether  the  power  exercised  is  or  is  not,  in  an  appropriate  case,  within  the 
power  expressly  or  impliedly  delegated  by  the  Constitution  to  the  Govern- 
ment of  the  Union. 

If  the  question  is  political,  the  judicial  power  will  not  pass  upon  it,  as 
the  legislative  and  executive  branches  of  the  Government  are  vested  with  its 
exercise.  If,  however,  it  is  claimed  by  the  legislative  or  executive  to  be 
political,  whereas  in  fact  it  is  not,  the  judicial  power  extends  to  it,  inasmuch 
as  the  legislative  and  executive  departments  of  the  Government  can  only 
exercise  political,  not  judicial  power;  and  even  if  the  question  be  political, 
the  judiciary  must  needs  examine  it  in  a  proper  and  specific  case,  in  order  to 
determine  whether  it  is  within  or  without  the  grant  of  power.  It  was  to*be 
expected  that  cases  of  this  nature  would  arise.  They  have  frequently  arisen, 
and  can  best  be  analyzed  and  defined  by  decisions  of  the  Supreme  Court  of 
the  United  States. 

We  may  accept  in  the  abstract  the  separation  of  judicial  from  political 
functions;  but  it  is  only  through  the  concrete  case  that  the  line  of  demarca- 
tion, existing  in  theory,  is  rendered  visible  in  fact.  A  few,  therefore,  of 
the  many  cases  involving  this  question,  will  be  considered,  in  order  that  the 
reader  may  frame  for  himself  the  definition  of  political  power  and  draw 
the  line  between  judicial  power,  on  the  one  hand,  and  legislative  and  execu- 
tive power,  on  the  other. 

In  Foster  v.  Neilson  (2  Peters,  253),  decided  in  1829,  the  Supreme 
Court  had  occasion  to  consider  the  question  of  international  relations,  the 
conduct  of  which  is  confided  by  the  Constitution  to  the  President,  with  the 
advice  and  consent  of  the  Senate.  A  treaty  thus  made  is,  by  the  Constitu- 
tion, part  of  the  supreme  law  of  the  land.  As  a  law,  the  judicial  power  is 
extended  to  it,  but  only  in  the  sense  of  interpreting  it  and  applying  it  to  a 
concrete  case  of  a  justiciable  nature.  The  propriety  of  making  the  treaty 
depends  upon  the  discretion  of  the  President  and  of  two-thirds  of  the 
Senators  present  during  its  consideration,  in  whom  the  treaty-making  power 
is  vested. 

The  facts  in  the  case  are  very  complicated,  and  for  present  purposes  it 
may  be  said  that  the  plaintiffs  claimed  a  large  tract  of  land  lying  in 
Louisiana,  about  thirty  miles  east  of  the  Mississippi  River  and  in  the  pos- 
session of  the  defendant  under  a  grant  of  the  Spanish  Governor,  confirmed 
by  the  King  of  Spain.  The  defendant,  admitting  the  grant,  claimed  that 
it  was  null  and  void  in  that  the  land  in  question  was  situated  in  territory 
which,  before  the  grant,  had  been  ceded  to  France  and  by  France  to  the 


POWERS   OF   THE    SUPREME    COURT  377 

United  States.  From  a  judgment  in  favor  of  the  defendant,  had  in  the 
District  Court  of  the  United  States  for  the  Eastern  District  of  Louisiana, 
the  cause  was  heard  before  the  Supreme  Court  upon  a  writ  of  error.  Mr. 
Chief  Justice  Marshall  thus  stated  the  facts: 

The  case  presents  this  very  intricate,  and,  at  one  time,  very  interesting 
question :  To  whom  did  the  country  between  the  Iberville  and  the  Perdido 
rightfully  belong,  when  the  title  now  asserted  by  the  plaintiffs  was 
acquired? 

This  question  has  been  repeatedly  discussed,  with  great  talent  and 
research,  by  the  government  of  the  United  States  and  that  of  Spain.  The 
United  States  have  perseveringly  and  earnestly  insisted,  that  by  the  treaty 
of  St.  Ildefonso,  made  on  the  1st  of  October,  in  the  year  1800,  Spain  ceded 
the  disputed  territory  as  part  of  Louisiana  to  France ;  and  that  France,  by 
the  treaty  of  Paris,  signed  on  the  30th  of  April  1803,  and  ratified  on  the 
21st  of  October,  in  the  same  year,  ceded  it  to  the  United  States.  Spain 
has  with  equal  perseverance  and  earnestness  maintained  that  her  cession 
to  France  comprehended  that  territory  only  which  was  at  that  time, 
denominated  Louisiana,  consisting  of  the  island  of  New  Orleans,  and  the 
country  she  received  from  France  west  of  the  Mississippi.1 

In  view  of  these  circumstances,  Mr.  Chief  Justice  Marshall  said,  on  behalf 
of  the  court : 

However  this  may  be,  it  is,  we  think,  incontestable,  that  the  American 
construction  of  the  article,  if  not  entirely  free  from  question,  is  supported 
by  arguments  of  great  strength,  which  cannot  be  easily  confuted. 

In  a  controversy  between  two  nations,  concerning  national  boundary,  it  is 
scarcely  possible,  that  the  courts  of  either  should  refuse  to  abide  by  the 
measures  adopted  by  its  own  government.  There  being  no  common  tri- 
bunal to  decide  between  them,  each  determines  for  itself  on  its  own  rights, 
and  if  they  cannot  adjust  their  differences  peaceably,  the  right  remains  with 
the  strongest.  The  judiciary  is  not  that  department  of  the  government,  to 
which  the  assertion  of  its  interests  against  foreign  powers  is  confided ;  and 
its  duty  commonly  is  to  decide  upon  individual  rights,  according  to  those 
principles  which  the  political  departments  of  the  nation  have  established. 
If  the  course  of  the  nation  has  been  a  plain  one,  its  courts  would  hesitate 
to  pronounce  it  erroneous. 

We  think,  then,  however  individual  judges  might  construe  the  treaty 
of  St.  Ildefonso,  it  is  the  province  of  the  Court  to  conform  its  decisions  to 
the  will  of  the  legislature,  if  that  will  has  been  clearly  expressed.   .    .    . 

After  these  acts  of  sovereign  power  over  the  territory  in  dispute,  assert- 
ing the  American  construction  of  the  treaty,  by  which  the  government  claims 
it,  to  maintain  the  opposite  construction  in  its  own  courts  would  certainly 
be  an  anomaly  in  the  history  and  practice  of  nations.  If  those  departments 
which  are  intrusted  with  the  foreign  intercourse  of  the  nation,  which  assert 
and  maintain  its  interests  against  foreign  powers,  have  unequivocally 
asserted  its  rights  of  dominion  over  a  country  of  which  it  is  in  possession, 
and  which  it  claims  under  a  treaty ;  if  the  legislature  has  acted  on  the  con- 
struction thus  asserted,  it  is  not  in  its  own  courts  that  this  construction  is 

1  Foster  v.  Ncxlson,  2  Peters,  299. 


378  THE   UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

to  be  denied.  A  question  like  this  respecting  the  boundaries  of  nations,  is, 
as  has  been  truly  said,  more  a  political  than  a  legal  question,  and  in  its 
discussion,  the  courts  of  every  country  must  respect  the  pronounced  will 
of  the  legislature.1 

Powera'as  to  ^  tne  court  nad  stopped  here,  we  should  be  perplexed  to  understand  how 

Treaties  the  judicial  power  extends  to  treaties,  or  why,  if  it  does,  the  court  refused 

to  exercise  the  judicial  power.  This  was  not  overlooked  by  the  great  Chief 
Justice,  who  stated,  in  a  subsequent  portion  of  his  opinion,  both  the  nature 
of  a  treaty  as  a  contract  in  the  world  at  large,  as  a  law  in  the  United  States, 
and  the  conditions  under  which  the  judicial  power  attaches  to  it.     Thus : 

A  treaty  is,  in  its  nature,  a  contract  between  two  nations,  not  a  legislative 
act.  It  does  not  generally  effect,  of  itself,  the  object  to  be  accomplished; 
especially  so  far  as  its  operation  is  infra-territorial ;  but  is  carried  into  execu- 
tion by  the  sovereign  power  of  the  respective  parties  to  the  instrument. 

In  the  United  States,  a  different  principle  is  established.  Our  constitution 
declares  a  treaty  to  be  the  law  of  the  land.  It  is,  consequently,  to  be 
regarded  in  courts  of  justice  as  equivalent  to  an  act  of  the  legislature,  when- 
ever it  operates  of  itself  without  the  aid  of  any  legislative  provision.  But 
when  the  terms  of  the  stipulation  import  a  contract  when  either  of  the 
parties  engages  to  perform  a  particular  act,  the  treaty  addresses  itself  to 
the  political,  not  the  judicial  department ;  and  the  legislature  must  execute 
the  contract,  before  it  can  become  a  rule  for  the  court.2 

The  same  question  presented  itself  in  a  different  form  in  Williams  v. 
Suffolk  Insurance  Co.  (13  Peters,  415),  decided  by  the  Supreme  Court  in 
1839,  in  which  it  was  held  that  the  title  of  a  foreign  government  to  territory 
is  a  political  question,  to  be  decided  by  the  political  department,  not  by  the 
judicial  power  of  the  United  States.  In  delivering  the  opinion  of  the  court, 
Mr.  Justice  McLean  stated  the  facts  involved,  the  rule  of  law,  and  the 
reason  for  the  rule.    First,  as  to  the  facts: 

As  the  fact  is  stated  in  the  first  point  certified,  that  there  is  a  contro- 
versy between  this  government  and  that  of  Buenos  Ayres,  whether  the 
jurisdiction  is  rightful,  which  is  assumed  to  be  exercised  over  the  Falkland 
Islands  by  the  latter;  and  that  this  right  is  asserted  on  the  one  side  and 
denied  by  the  other,  it  will  not  be  necessary  to  look  into  the  correspondence 
between  the  two  governments  on  the  subject.  To  what  sovereignty  any 
island  or  country  belongs,  is  a  question  which  often  arises  before  courts  in 
the  exercise  of  a  maritime  jurisdiction;  and  also  in  actions  on  policies  of 
insurance.3 

Next,  as  to  the  rule: 

And  can  there  be  any  doubt,  that  when  the  executive  branch  of  the 
government,    which    is    charged    with    our    foreign    relations,    shall,    in    its 

'2  Peters,  307,  309. 

'Ibid.,  314. 

'  13  Peters,  420. 


POWERS   OF   THE    SUPREME   COURT  379 

correspondence  with  a  foreign  nation,  assume  a  fact  in  regard  to  the  sov- 
ereignty of  any  island  or  country,  it  is  conclusive  on  the  judicial  depart- 
ment? And  in  this  view,  it  is  not  material  to  inquire,  nor  is  it  the  province 
of  the  court  to  determine,  whether  the  executive  be  right  or  wrong.  It  is 
enough  to  know,  that  in  the  exercise  of  his  constitutional  functions,  he  had 
decided  the  question.  Having  done  this,  under  the  responsibilities  which 
belong  to  him,  it  is  obligatory  on  the  people  and  government  of  the  Union.1 

Finally,  as  to  the  reason  of  the  rule: 

If  this  were  not  the  rule,  cases  might  often  arise,  in  which,  on  the  most 
important  questions  of  foreign  jurisdiction,  there  would  be  an  irrecon- 
cilable difference  between  the  executive  and  judicial  departments.  By  one 
of  these  departments,  a  foreign  island  or  country  might  be  considered  as 
at  peace  with  the  United  States ;  whilst  the  other  would  consider  it  in  a 
state  of  war.  No  well-regulated  government  has  ever  sanctioned  a  prin- 
ciple so  unwise,  and  so  destructive  of  national  character.  In  the  cases  of 
Foster  v.  Neilson,  2  Pet.  253,  307,  and  Garcia  v.  Lee,  12  Ibid.  511,  this 
court  have  laid  down  the  rule,  that  the  action  of  the  political  branches  of 
the  government  in  a  matter  that  belongs  to  them,  is  conclusive.  And  we 
think,  in  the  present  case,  as  the  executive,  in  his  message,  and  in  his  cor- 
respondence with  the  government  of  Buenos  Ayres,  has  denied  the  juris- 
diction which  it  has  assumed  to  exercise  over  the  Falkland  islands ;  the  fact 
must  be  taken  and  acted  on  by  this  court  as  thus  asserted  and  maintained.2 

1  Ibid. 

'Ibid. 

In  cases  involving  the  action  of  the  political  departments  of  the  government,  the  judi- 
ciary is  bound  by  such  action.  Williams  v.  Suffolk  Ins.  Co.,  13  Pet.,  420;  Garcia  v.  Lee, 
12  Pet.,  511;  Kennet  v.  Chambers,  14  How.,  38;  Foster  v.  Neilson,  2  Pet.,  253;  Nabob 
of  the  Camatic  v.  The  East  lnd.  Co.,  2  Ves.,  Ir.,  60;  Luther  v.  Borden,  7  How.,  1; 
Rhode  Island  v.  Massachusetts,  12  Pet.,  714. 

The  judiciary  recognizes  the  condition  of  things  with  respect  to  the  government  of 
another  country  which  once  existed  as  still  subsisting,  unless  the  political  department  of 
its  own  government  has  decided  otherwise.  Kennet  v.  Chambers,  7  How.,  38.  (Mr.  Justice 
Swayne  in  Phillips  v.  Payne,  92  U.  S.,  130,  132,  decided  hi  1875.) 

\\  ho  is  the  sovereign,  de  jure  or  dc  facto,  of  a  territory  is  not  a  judicial,  but  a  political 
question,  the  determination  of  which  by  the  legislative  and  executive  departments  of  any 
government  conclusively  binds  the  judges,  as  well  as  all  other  officers,  citizens  and  sub- 
jects of  that  government.  This  principle  has  always  been  upheld  by  this  court,  and  has 
been  affirmed  under  a  great  variety  of  circumstances.  (Mr.  Justice  Gray,  in  Jones  v. 
United  States,  137  U.  S.,  202,  212,  decided  in  1890.) 

It  appears  that  certain  American  citizens,  asserting  interests  in  the  Isle  of  Pines,  had 
contended  that  it  belonged  to  the  United  States  under  the  treaty,  and  the  sixth  clause  of 
the  Piatt  Amendment,  while  not  asserting  an  absolute  claim  of  title  on  our  part,  gave 
opportunity  for  an  examination  of  the  question  of  ownership  and  its  settlement  through  a 
treaty  with  Cuba.  The  Republic  of  Cuba  has  been  governing  the  isle  since  May  20,  1902 — 
the  present  situation  need  not  be  discussed — and  has  made  various  improvements  in  admin- 
istration at  the  suggestion  of  our  Government,  but  Congress  has  taken  no  action  to  the 
contrary  to  Cuba's  title  as  superior  to  ours. 

It  may  be  conceded  that  the  action  of  both  the  political  departments  has  not  been  suffi- 
ciently definite  to  furnish  a  conclusive  interpretation  of  the  treaty  of  peace  as  an  original 
question,  and  as  yet  no  agreement  lias  been  reached  under  the  Piatt  Amendment.  The 
Isle  of  Pines  continues  at  least  de  facto  under  the  jurisdiction  of  the  government  of  the 
Republic  of  Cuba,  and  that  settles  the  question  before  us.  ...  It  must  be  treated  as 
foreign,  for  this  Government  has  never  taken,  nor  aimed  to  take,  that  possession  in  fact 
and  in  law  which  is  essential  to  render  it  domestic.  (Mr.  Chief  Justice  Fuller  in  Percy  v. 
Stranahan.  205  U.  S.,  257,  271-2,  decided  in  1907.) 


380  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

The  next  case,  entitled  Luther  v.  Borden  (7  Howard,  1),  decided  in 
1849,  is  a  very  important  one,  holding  that  the  recognition  of  a  government 
of  a  State  of  the  American  Union  is,  as  in  States  of  the  society  of  nations, 
a  political  question,  and  as  such  is  to  be  passed  upon  by  the  political,  not  by 
the  judicial,  department  of  the  United  States.  As,  however,  the  facts  of 
the  case  are  interesting,  and  as  Mr.  Chief  Justice  Taney  is  a  recognized 
authority  on  all  questions  pertaining  to  the  judicial  power,  the  facts  of  the 
case  and  the  opinion  of  the  court  are  briefly  given.  The  facts  and  the  hold- 
ing of  the  court  are  thus  stated  in  the  head-note  of  the  case: 

At  the  period  of  the  American  Revolution,  Rhode  Island  did  not,  like 
the  other  States,  adopt  a  new  constitution,  but  continued  the  form  of  gov- 
ernment established  by  the  charter  of  Charles  the  Second,  making  only  such 
alterations;  by  acts  of  the  Legislature,  as  were  necessary  to  adapt  it  to  their 
condition  and  rights  as  an  independent  State.    .    .    . 

In  1841  a  portion  of  the  people  held  meetings  and  formed  associations, 
which  resulted  in  the  election  of  a  convention  to  form  a  new  constitution, 
to  be  submitted  to  the  people  for  their  adoption  or  rejection. 

This  convention  framed  a  constitution,  directed  a  vote  to  be  taken  upon 
it,  declared  afterwards  that  it  had  been  adopted  and  ratified  by  a  majority 
of  the  people  of  the  State,  and  was  the  paramount  law  and  constitution  of 
Rhode  Island. 

Under  it,  elections  were  held  for  Governor,  members  of  the  Legislature, 
and  other  officers,  who  assembled  together  in  May,  1842,  and  proceeded  to 
organize  the  new  government. 

But  the  charter  government  did  not  acquiesce  in  these  proceedings.  On 
the  contrary,  it  passed  stringent  laws,  and  finally  passed  an  act  declaring  the 
State  under  martial  law. 

In  May,  1843,  a  new  constitution,  which  had  been  framed  by  a  con- 
vention called  together  by  the  charter  government,  went  into  operation,  and 
has  continued  ever  since. 

The  question  which  of  the  two  opposing  governments  was  the  legitimate 
one,  viz.  the  charter  government,  or  the  government  established  by  the  volun- 
tary convention,  has  not  heretofore  been  regarded  as  a  judicial  one  in  any  of 
the  State  courts.  The  political  department  has  always  determined  whether  a 
proposed  constitution  or  amendment  was  ratified  or  not  by  the  people  of  the 
State,  and  the  judicial  power  has  followed  its  decision. 

The  framers  of  the  Constitution  found  it  necessary  to  guarantee  the 
existence  of  the  States,  as  those  States  had  renounced  their  diplomacy  and  a 
resort  to  war,  and  they  did  so  in  the  following  manner  by  section  4  of  Article 
IV  of  that  instrument: 

The  United  States  shall  guarantee  to  every  State  in  this  Union  a  Repub- 
lican Form  of  Government,  and  shall  protect  each  of  them  against  Invasion; 
and  on  Application  of  the  Legislature,  or  of  the  Executive  (when  the  Legis- 
lature cannot  be  convened)  against  domestic  Violence. 


POWERS    OF   THE    SUPREME    COURT  381 

Adverting  to  this  state  of  affairs,  Mr.  Chief  Justice  Taney  thus  continues: 

Under  this  article  of  the  Constitution  it  rests  with  Congress  to  decide 
what  government  is  the  established  one  in  a  State.  For  as  the  United 
States  guarantee  to  each  State  a  republican  government,  Congress  must 
necessarily  decide  what  government  is  established  in  the  State  before 
it  can  determine  whether  it  is  republican  or  not.  And  when  the  senators 
and  representatives  of  a  State  are  admitted  into  the  councils  of  the  Union, 
the  authority  of  the  government  under  which  they  are  appointed,  as  well 
as  its  republican  character,  is  recognized  by  the  proper  constitutional  au- 
thority. And  its  decision  is  binding  on  every  other  department  of  the  govern- 
ment, and  could  not  be  questioned  in  a  judicial  tribunal.  It  is  true  that  the 
contest  in  this  case  did  not  last  long  enough  to  bring  the  matter  to  this  issue ; 
and  as  no  senators  or  representatives  were  elected  under  the  authority  of 
the  government  of  which  Mr.  Dorr  was  the  head,  Congress  was  not  called 
upon  to  decide  the  controversy.  Yet  the  right  to  decide  is  placed  there,  and 
not  in  the  courts. 

So,  too,  as  relates  to  the  clause  in  the  above-mentioned  article  of  the 
Constitution,  providing  for  cases  of  domestic  violence.  It  rested  with  Con- 
gress, too,  to  determine  upon  the  means  proper  to  be  adopted  to  fulfil  this 
guarantee.  They  might,  if  they  had  deemed  it  most  advisable  to  do  so,  have 
placed  it  in  the  power  of  a  court  to  decide  when  the  contingency  had  hap- 
pened which  required  the  federal  government  to  interfere.  But  Congress 
thought  otherwise,  and  no  doubt  wisely ;  and  by  the  act  of  February  28, 
1795,  provided,  that,  "  in  case  of  an  insurrection  in  any  State  against  the 
government  thereof,  it  shall  be  lawful  for  the  President  of  the  United  States, 
on  application  of  the  legislature  of  such  State  or  of  the  executive  (when  the 
legislature  cannot  be  convened),  to  call  forth  such  number  of  the  militia  of 
any  other  State  or  States,  as  may  be  applied  for,  as  he  may  judge  sufficient 
to  suppress  such  insurrection." 

By  this  act,  the  power  of  deciding  whether  the  exigency  had  arisen  upon 
which  the  government  of  the  United  States  is  bound  to  interfere,  is  given 
to  the  President.1 

The  attitude  of  the  Supreme  Court  towards  political  questions,  and  the 
reserve  which  becomes  it  on  such  occasions,  are  admirably  pointed  out  by  the 
Chief  Justice  in  the  concluding  passage  of  his  opinion: 

Much  of  the  argument  on  the  part  of  the  plaintiff  turned  upon  political 
rights  and  political  questions,  upon  which  the  court  has  been  urged  to  express 
an  opinion.  We  decline  doing  so.  The  high  power  has  been  conferred  on 
this  court  of  passing  judgment  upon  the  acts  of  the  State  sovereignties,  and 
of  the  legislative  and  executive  branches  of  the  federal  government,  and  of 
determining  whether  they  are  beyond  the  limits  of  power  marked  out  for 
them  respectively  by  the  Constitution  of  the  United  States.  This  tribunal, 
therefore,  should  be  the  last  to  overstep  the  boundaries  which  limit  its  own 
jurisdiction.  And  while  it  should  always  be  ready  to  meet  any  question  con- 
fided to  it  by  the  Constitution,  it  is  equally  its  duty  not  to  pass  beyond  its 
appropriate  sphere  of  action,  and  to  take  care  not  to  involve  itself  in  discus- 
sions which  properly  belong  to  other  forums.    No  one,  we  believe,  has  ever 

1  Luther  v.  Borden,  7  Howard,  42-3. 


382  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

doubted  the  proposition,  that,  according  to  the  institutions  of  this  country, 
the  sovereignty  in  every  State  resides  in  the  people  of  the  State,  and  that 
they  may  alter  and  change  their  form  of  government  at  their  own  pleasure. 
But  whether  they  have  changed  it  or  not  by  abolishing  an  old  government, 
and  establishing  a  new  one  in  its  place,  is  a  question  to  be  settled  by  the 
political  power.  And  when  that  power  has  decided,  the  courts  are  bound 
to  take  notice  of  its  decision,  and  to  follow  it.1 

In  the  Neilson  case  (supra,  p.  376),  the  power,  primarily  lodged  with 
the  President,  was  shared  with  the  Senate  in  its  execution.  In  the  Borden 
case  (supra,  p.  380),  the  power,  primarily  lodged  in  the  Congress,  is  dele- 
gated to  the  President,  who  becomes  the  agent  of  the  Congress  in  deciding 
the  facts  which  justify  intervention  on  behalf  of  the  Government  of  the 
Union.  In  the  Suffolk  Ins.  Co.  Case  (supra,  p.  378),  the  power  pertained  to 
the  President,  as  in  the  Prize  Cases  (2  Black,  635),  decided  by  the  Supreme 
Court  in  1862. 

The  facts  in  these  cases  are  peculiarly  American,  and  the  case  has  an 
interest  of  its  own  far  exceeding  that  of  Luther  v.  Borden.  The  States  of 
the  Union  were  at  war.  The  ports  of  the  Southern  States  had  been  blockaded 
by  Mr.  Lincoln,  then  President  of  the  United  States.  If  the  blockade  was 
legal,  that  is  to  say,  if  the  President  had  the  right  to  close  the  ports  of  the 
Southern  States  by  blockade  without  an  act  of  Congress  declaring  war,  then 
certain  vessels,  violating  this  blockade,  could  be  properly  seized  and  confis- 
cated; whereas,  if  a  declaration  of  war  by  Congress  was  necessary,  the 
proclamation  would  have  been  without  binding  effect,  inasmuch  as  a  blockade 
presupposes  the  existence  of  a  state  of  war.  The  question,  therefore,  before 
the  court  was,  as  stated  by  Mr.  Justice  Grier,  who  delivered  its  opinion : 

"nder  Had  the  President  a  right  to  institute  a  blockade  of  ports  in  possession  of 

persons  in  armed  rebellion  against  the  Government,  on  the  principles  of 
international  law,  as  known  and  acknowledged  among  civilized  States?2 

It  is  to  be  observed  that,  by  the  Constitution,  the  law  of  nations  is  recognized' 
and  that,  by  repeated  decisions  of  the  Supreme  Court,  it  is  declared  to  be 
a  part  of  the  law  of  the  land.  By  the  law  of  nations,  a  proclamation  of 
blockade  recognizes  the  existence  of  war  and  confers  upon  the  parties  to  it 
both  the  rights  and  duties  of  belligerents  in  a  war  between  nations.  On  the 
very  point  in  question,  Mr.  Justice  Grier  said : 

Whether  the  President  in  fulfilling  his  duties,  as  Commander-in-chief, 
in  suppressing  an  insurrection,  has  met  with  such  armed  hostile  resistance, 
and  a  civil  war  of  such  alarming  proportions  as  will  compel  him  to  accord 

1  7  Howard,  46-7. 

'  The  Prise  Cases,  2  Black,  665. 


POWERS   OF   THE    SUPREME    COURT  383 

to  them  the  character  of  belligerents,  is  a  question  to  be  decided  by  him, 
and  this  Court  must  be  governed  by  the  decisions  and  acts  of  the  political 
department  of  the  Government  to  which  this  power  was  entrusted.  "  He 
must  determine  what  degree  of  force  the  crisis  demands."  The  proclamation 
of  blockade  is  itself  official  and  conclusive  evidence  to  the  Court  that  a  state 
of  war  existed  which  demanded  and  authorized  a  recourse  to  such  a  measure, 
under  the  circumstances  peculiar  to  the  case.1 

If,  however,  the  action  of  Congress  was  necessary  in  the  case  of  a  Civil 
War,  which  could  not  be  declared  as  in  the  case  of  a  war  against  a  foreign 
nation,  the  learned  Justice  considered  the  acts  of  Congress  relating  to  the 
war  as  a  sufficient  declaration  of  its  existence.  Speaking  on  behalf  of  the 
majority,  he  considered  the  act  of  Congress  of  1861,  "  approving,  legalizing, 
and  making  valid  all  the  acts,  proclamations,  and  orders  of  the  President,  &c, 
as  if  they  had  been  issued  and  done  under  the  previous  express  authority  and 
direction  of  the  Congress  of  the  United  States,"  as  a  ratification  of  the  act 
of  the  President,  if  indeed  one  were  needed.  In  this  part  of  his  opinion  he 
relied  upon  the  following  statement  of  Mr.  Justice  Story  in  the  case  of 
Brown  v.  United  States  decided  in  1814  (8  Cranch,  133)  : 

I  am  perfectly  satisfied that  no  subject  can  legally  commit 

hostilities,   or  capture   property   of   an   enemy,    when    .    .    .    the   sovereign 

has  prohibited  it.     But  suppose,  he   does,   I  would  ask,   if  the 

sovereign  may  not  ratify  his  proceedings;  and  thus,  by  a  retroactive  opera- 
tion, give  validity  to  them? 

The  court  therefore  concluded,  in  the  language  of  Mr.  Justice  Grier : 

On  this  first  question  therefore  we  are  of  the  opinion  that  the  Presi- 
dent had  a  right,  jure  belli,  to  institute  a  blockade  of  ports  in  possession  of 
the  States  in  rebellion,  which  neutrals  are  bound  to  regard.2 

Further  light  is  thrown  upon  this  subject  by  three  cases,  in  two  of  which 
the  President  of  the  United  States  is  concerned;  in  the  last,  a  State  of  the 
Union,  in  each  of  which  the  court  refused  to  accept  jurisdiction  because  the 
questions  were  political,  and  as  such,  beyond  the  scope  of  judicial  power. 

In  State  of  Mississippi  v.  Johnson,  (4  Wallace,  475),  decided  in  1866, 
Mr.  Chief  Justice  Chase  delivering  the  unanimous  opinion  of  the  court,  stated 
the  facts  as  follows : 

A  motion  was  made,  some  days  since,  in  behalf  of  the  State  of  Mis- 
sissippi, for  leave  to  file  a  bill  in  the  name  of  the  State,  praying  this  court 
perpetually  to  enjoin  and  restrain  Andrew  Johnson,  President  of  the  United 

1  Ibid.,  670. 
*  Ibid..  671. 


384  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

States,  and  E.  O.  C.  Ord,  general  commanding  in  the  District  of  Mississippi 
and  Arkansas,  from  executing,  or  in  any  manner  carrying  out,  certain  acts  of 
Congress  therein  named. 

The  acts  referred  to  are  those  of  March  2d  and  March  23d,  1867,  com- 
monly known  as  the  Reconstruction  Acts. 

The  Attorney-General  objected  to  the  leave  asked  for,  upon  the  ground 
that  no  bill  which  makes  a  President  a  defendant,  and  seeks  an  injunction 
against  him  to  restrain  the  performance  of  his  duties  as  President,  should 
be  allowed  to  be  filed  in  this  court.1 

The  case  was  elaborately  argued  by  counsel  for  Mississippi  and  by  the 
Attorney  General  on  behalf  of  the  President,  the  counsel  for  Mississippi 
maintaining  that  the  duty  cast  upon  the  President  by  the  Acts  in  question 
was  ministerial  and  that  the  performance  of  a  ministerial  act  could  be  com- 
pelled by  mandamus  or  enjoined  by  injunction. 

The  case,  as  considered  by  the  court  was,  as  stated  by  the  Chief  Jus- 
tice, "  Can  the  President  be  restrained  by  injunction  from  carrying  into 
effect  an  act  of  Congress  alleged  to  be  unconstitutional?" 

The  Chief  Justice  first  defined  a  ministerial  duty,  then  invoked  adjudged 
cases  in  support  of  the  definition,  and  finally  distinguished  the  duty  imposed 
upon  the  President  by  the  Statute  which,  in  his  opinion  and  in  the  opinion 
of  the  court,  required  not  merely  discretion,  but  discretion  of  the  highest  pos- 
sible degree.     Thus: 

A  ministerial  duty,  the  performance  of  which  may,  in  proper  cases,  be 
required  of  the  head  of  a  department,  by  judicial  process,  is  one  in  respect 
to  which  nothing  is  left  to  discretion.  It  is  a  simple,  definite  duty,  arising 
under  conditions  admitted  or  proved  to  exist,  and  imposed  by  law. 

For  this  he  vouched,  in  first  instance,  the  case  of  Marbury  v.  Madison,  (1 
Cranch,  137)  of  which  he  said  : 

A  citizen  had  been  nominated,  confirmed,  and  appointed  a  justice  of  the 
peace  for  the  District  of  Columbia,  and  his  commission  had  been  made  out, 
signed,  and  sealed.  Nothing  remained  to  be  done  except  delivery,  and  the 
duty  of  delivery  was  imposed  by  law  on  the  Secretary  of  State.  It  was  held 
that  the  performance  of  this  duty  might  be  enforced  by  mandamus  issuing 
from  a  court  having  jurisdiction.-  -- 

And  in  the  second,  the  case  of  Kendal,  Postmaster-General  v.  Stockton  & 
Stokes,  (12  Peters,  527),  the  Chief  Justice  said: 

An  act  of  Congress  had  directed  the  Postmaster-General  to  credit  Stock- 
ton &  Stokes  with  such  sums  as  the  Solicitor  of  the  Treasury  should  find 
due  to  them ;  and  that  officer  refused  to  credit  them  with  certain  sums,  so 

1  4  Wallace,  497-8. 
*  Ibid.,  498. 


POWERS    OF    THE    SUPREME    COURT  385 

found  due.    It  was  held  that  the  crediting  of  this  money  was  a  mere  minis- 
terial duty,  the  performance  of  which  might  be  judicially  enforced.1 

After  stating  that  in  each  of  these  cases  nothing  was  left  to  discretion,  that 
there  was  no  room  for  the  exercise  of  judgment,  and  that  the  law  required 
the  performance  of  a  single  specific  act  rightly  compellable  by  mandamus, 
the  Chief  Justice  thus  distinguished  the  case  before  him : 

Very  different  is  the  duty  of  the  President  in  the  exercise  of  the  power 
to  see  that  the  laws  are  faithfully  executed,  and  among  these  laws  the  acts 
named  in  the  bill.  By  the  first  of  these  acts  he  is  required  to  assign  gen- 
erals to  command  in  the  several  military  districts,  and  to  detail  sufficient 
military  force  to  enable  such  officers  to  discharge  their  duties  under  the  law. 
By  the  supplementary  act,  other  duties  are  imposed  on  the  several  com- 
manding generals,  and  these  duties  must  necessarily  be  performed  under 
the  supervision  of  the  President  as  commander-in-chief.  The  duty  thus 
imposed  on  the  President  is  in  no  just  sense  ministerial.  It  is  purely  execu- 
tive and  political. 

An  attempt  on  the  part  of  the  judicial  department  of  the  government  to 
enforce  the  performance  of  such  duties  by  the  President  might  be  justly 
characterized,  in  the  language  of  Chief  Justice  Marshall,  as  "  an  absurd  and 
excessive  extravagance." 

It  is  true  that  in  the  instance  before  us  the  interposition  of  the  court  is 
not  sought  to  enforce  action  by  the  Executive  under  constitutional  legis- 
lation, but  to  restrain  such  action  under  legislation  alleged  to  be  unconstitu- 
tional. But  we  are  unable  to  perceive  that  this  circumstance  takes  the  case 
out  of  the  general  principles  which  forbid  judicial  interference  with  the 
exercise  of   Executive  discretion. 

After  declaring  that  the  Congress  is  the  Legislative  Department  of  the  Gov- 
ernment, that  the  President  is  the  Executive  Department,  that: 

Neither  can  be  restrained  in  its  action  by  the  judicial  department ;  though 
the  acts  of  both,  when  performed,  are,  in  proper  cases,  subject  to  its 
cognizance. 

The  Chief  Justice  thus  stated  the  reason  obtaining  in  this  category  of  cases: 

The  impropriety  of  such  interference  will  be  clearly  seen  upon  considera- 
tion of  its  possible  consequences. 

Suppose  the  bill  filed  and  the  injunction  prayed  for  allowed.  If  the 
President  refuse  obedience,  it  is  needless  to  observe  that  the  court  is  with- 
out power  to  enforce  its  process.  If,  on  the  other  hand,  the  President  com- 
plies with  the  order  of  the  court  and  refuses  to  execute  the  acts  of  Con- 
gress, is  it  not  clear  that  a  collision  may  occur  between  the  executive  and 
legislative  departments  of  the  government?  May  not  the  House  of  Repre- 
sentatives impeach  the  President  for  such  refusal?  And  in  that  case  could 
this  court  interfere,  in  behalf  of  the  President,  thus  endangered  by  com- 

'  Ibid.,  499. 


386  THE   UNITED    STATES:    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

pliance  with  its  mandate,  and  restrain  by  injunction  the  Senate  of  the  United 
States  from  sitting  as  a  court  of  impeachment?  Would  the  strange  spec- 
tacle be  offered  to  the  public  world  of  an  attempt  by  this  court  to  arrest 
proceedings  in  that  court  ? 

These  questions  answer  themselves.1 

The  State  of  Georgia  presented  practically  the  same  question  in  a  dif- 
ferent form.  If  the  President  of  the  United  States  might  not  be  enjoined 
why  not  the  Secretary  of  War  and  the  Commanding  Officers  of  the  Army 
from  carrying  into  effect  the  provisions  of  the  Reconstruction  Acts?  This 
counsel  for  Georgia  attempted  to  do  in  the  State  of  Georgia  v.  Stanton,  (6 
Wallace,  50),  decided  in  the  December  term,  1867,  adverse  to  the  contention 
of  Georgia,  and  in  accordance  with  the  opinion  of  the  Court  in  the  case  of 
Mississippi  v.  Johnson. 

Mr.  Justice  Nelson  who  delivered  the  opinion  of  the  court  first  noted  the 
objection  that  the  questions  presented  for  adjudication  were  "  political  and 
not  judicial,  and  therefore,  not  the  subject  of  judicial  cognizance";  he  next 
adverted  to  the  importance  of  the  objection,  and  continued: 

This  distinction  results  from  the  organization  of  the  government  into  the 
three  great  departments,  executive,  legislative,  and  judicial,  and  from  the 
assignment  and  limitation  of  the  powers  of  each  by  the  Constitution. 

The  judicial  power  is  vested  in  one  supreme  court,  and  in  such  inferior 
courts  as  Congress  may  ordain  and  establish:  the  political  power  of  the 
government  in  the  other  two  departments. 

The  distinction  between  judicial  and  political  power  is  so  generally  ac- 
knowledged in  the  jurisprudence  both  of  England  and  of  this  country,  that 
we  need  do  no  more  than  refer  to  some  of  the  authorities  on  the  subject. 
They  are  all  in  one  direction.  (Nabob  of  Carnatic  v.  The  East  India  Co., 
1  Vesey,  Jr.,  375-393,  S.  C,  2  Id.  56-60;  Perm  v.  Lord  Baltimore,  1  Vesey, 
446-7 ;' Nezv  York  v.  Connecticut,  4  Dallas,  4-6;  The  Cherokee  Nation  v. 
Georgia,  5  Peters,  1,  20,  29,  30,  51,  75;  The  State  of  Rhode  Island  v.  The 
State  of  Massachusetts,  12  lb.,  657,  733,  734,  737,  738.  )2 

He  then  took  up  The  State  of  Rhode  Island  v.  The  State  of  Massachusetts, 
which  was  regarded  by  counsel  as  an  exception,  and  by  an  examination  of 
the  opinion  of  Mr.  Justice  Baldwin  in  that  case,  showed  that  the  question 
was  judicial  in  its  nature,  and  that  it  was  only  political  in  the  sense  that  the 
decision  of  the  boundary  between  the  two  States  involved  sovereignty  and 
political  rights  as  incident  to  the  ownership  of  the  land.  He  quoted  with 
approval  the  following  statement  from  Mr.  Justice  Baldwin's  opinion : 

Taking  the  case  on  the  bill  and  plea,  the  question  is,  whether  the  stake 
set  up  on  Wrentham  Plain  by  Woodward  and  Saffrey,  in  1842,  is  the  true 
point  from  which  to  run  an  east  and  west  line  as  the  compact  boundary 

1  4  Wallace,  500-1. 

2  6  Wallace,  71. 


POWERS    OF   THE    SUPREME   COURT  387 

between  the  States.  In  the  first  aspect  of  the  case  it  depends  on  a  fact;  in 
the  second,  on  the  law  of  equity,  whether  the  agreement  is  void  or  valid; 
neither  of  which  present  a  political  controversy,  but  one  of  an  ordinary 
judicial  nature  of  frequent  occurrence  in  suits  between  individuals.1 

Having  thus  shown  that  a  political  question  was  not  involved  in  Rhode 
Island  v.  Massachusetts,  and  that  the  court  did  not  overstep  the  line  sepa- 
rating the  judicial  from  the  political  departments  of  the  Government,  Mr. 
Justice  Nelson  proceeded  to  quote,  with  the  approval  of  the  court,  the  por- 
tion of  Mr.  Justice  Baldwin's  opinion  in  which  that  learned  Justice  laid  down 
in  clear,  precise,  and  unassailable  terms,  the  distinction  between  judicial  and 
political  power: 

From  the  time  of  such  submission  the  question  ceases  to  be  a  political 
one,  to  be  decided  by  the  sic  volo,  sic  jubeo,  of  political  power.  It  comes 
to  the  court  to  be  decided  by  its  judgment,  legal  discretion,  and  solemn 
consideration  of  the  rules  of  law,  appropriate  to  its  nature  as  a  judicial 
question,  depending  on  the  exercise  of  judicial  powers,  as  it  is  bound  to  act 
by  known  and  settled  principles  of  national  or  municipal  jurisprudence,  as 
the  case  requires.2 

And  in  commenting  upon  this  passage,  he  said  : 

that  the  question  thus  submitted  by  the  sovereign,  or  state,  to  a  judicial 
determination,  must  be  one  appropriate  for  the  exercise  of  judicial  power; 
such  as  a  question  of  boundary,  or  as  in  the  case  of  Pcnn  v.  Lord  Baltimore, 
a  contract  between  the  parties  in  respect  to  their  boundary.  Lord  Hard- 
wicke  places  his  right  in  that  case  to  entertain  jurisdiction  upon  this  ground.8 

Mr.  Justice  Nelson,  and  the  Court  for  which  he  spoke,  considered  as 
more,  and  indeed  most  in  point,  the  case  of  The  Cherokee  Nation  v.  The  State 
of  Georgia,  (5  Peters,  1),  decided  in  1831,  seven  years  previous  to  that  of 
Rhode  Island  v.  Massachusetts.  In  that  case,  the  Cherokee  Nation  then  re- 
siding within  the  limits  of  Georgia  prayed  the  Supreme  Court  that  that  State 
be  enjoined  from  extending  its  laws  over  the  Cherokee  Nation  whose  exist- 
ence as  a  separate  and  distinct  political  community  had  been  recognized  by 
the  United  States.  The  Court  dismissed  the  bill  on  the  ground  that  the  Su- 
preme Court  could  not  take  original  jurisdiction  of  the  case  because  the 
Cherokee  Nation  was  neither  a  foreign  State  nor  a  member  of  the  American 
Union,  but  a  dependent  domestic  State  which  did  not  therefore  have  the 
right  to  file  an  original  bill  in  the  Supreme  Court,  as  a  foreign  nation  or 
State  of  the  American  Union  possessed  under  the  Constitution.  There  was, 
however,  an  added  reason  in  the  opinion  of  the  majority  of  the  Court  why 

1  Ibid.,  72. 

*  Ibid. 
'  Ibid.,  73. 


3S8  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

jurisdiction  should  not  be  asumed  even  if  the  Cherokee  Nation  could  file  its 
bill,  which  was  thus  stated  by  Mr.  Chief  Justice  Marshall: 

That  the  part  of  the  bill  which  respects  the  land  occupied  by  the  Indians, 
and  prays  the  aid  of  the  court  to  protect  their  possessions,  may  be  more 
doubtful.  The  mere  question  of  right  might,  perhaps,  be  decided  by  this 
court  in  a  proper  case  with  proper  parties.  But  the  court  is  asked  to  do 
more  than  decide  on  the  title.  The  bill  requires  us  to  control  the  legislature 
of  Georgia,  and  to  restrain  the  exertions  of  its  physical  force.  The  propriety 
of  such  an  interposition  by  the  court  may  be  well  questioned.  It  savors  too 
much  of  the  exercise  of  political  power,  to  be  within  the  province  of  the 
judicial  department.1 

A  concurring  opinion  was  delivered  by  Mr.  Justice  Johnson,  in  which  he 
doubted  the  propriety  of  considering  the  Cherokee  Nation  even  as  a  domestic 
State,  and  an  opinion  by  Mr.  Justice  Baldwin  denying  to  them  that  equality. 

A  very  elaborate  dissenting  opinion,  delivered  by  Mr.  Justice  Thompson, 
in  which  Mr.  Justice  Story  concurred,  held  that  the  Cherokee  Nation  was  a 
nation  in  the  sense  of  the  Constitution  and  that  the  Court  could  take  juris- 
diction of  the  bill  in  so  far  as  the  parties  to  the  controversy  were  concerned, 
but  admitted  that  the  remedy  could  only  be  granted  in  part,  as  the  question 
was  largely  political.    On  this  point,  Mr.  Justice  Thompson  said : 

For  the  purpose  of  guarding  against  any  erroneous  conclusions,  it  is 
proper  I  should  state,  that  I  do  not  claim  for  this  court,  the  exercise  of 
jurisdiction  upon  any  matter  properly  falling  under  the  denomination  of 
political  power.  Relief  to  the  full  extent  prayed  for  by  the  bill  may  be  be- 
yond the  reach  of  this  court.  Much  of  the  matters  therein  contained  by 
way  of  complaint,  would  seem  to  depend  for  relief  upon  the  exercise  of 
political  power ;  and,  as  such,  appropriately  devolving  upon  the  executive, 
and  not  the  judicial  department  of  the  government.  This  court  can  grant 
relief  so  far,  only,  as  the  rights  of  persons  or  property  are  drawn  in  ques- 
tion, and  have  been  infringed.2 

This  and  the  following  portion  of  his  opinion  in  that  case  are  quoted  by  Mr. 
Justice  Nelson  on  behalf  of  the  Court: 

I  certainly  do  not  claim,  as  belonging  to  the  judiciary,  the  exercise  of 
political  power.  That  belongs  to  another  branch  of  the  Government.  The 
protection  and  enforcement  of  many  rights  secured  by  treaties,  most  cer- 
tainly do  not  belong  to  the  judiciary.  It  is  only  where  the  rights  of  persons 
or  property  are  involved,  and  when  such  rights  can  be  presented  under  some 
judicial  form  of  proceedings,  that  courts  of  justice  can  interpose  relief. 
This  court  can  have  no  right  to  pronounce  an  abstract  opinion  upon  the 
constitutionality  of  a  State  law.     Such  law  must  be  brought  into  actual,  or 

1  6  Wallace.  74. 
'  Ibid.,  74-5. 


POWERS    OF   THE    SUPREME    COURT  389 

threatened  operation  upon  rights  properly  falling  under  judicial  cognizance, 
or  a  remedy  is  not  to  be  had  here.1 

Mr.  Justice  Nelson  thereupon  stated  that  by  the  bill  the  Court  is : 

called  upon  to  restrain  the  defendants,  who  represent  the  executive  au- 
thority of  the  government,  from  carrying  into  execution  certain  acts  of 
Congress,  inasmuch  as  such  execution  would  annul,  and  totally  abolish  the 
existing  State  government  of  Georgia,  and  establish  another  and  different 
one  in  its  place ;  in  other  words,  would  overthrow  and  destroy  the  corporate 
existence  of  the  State,  by  depriving  it  of  all  the  means  and  instrumentalities 
whereby  its  existence  might,  and,  otherwise  would,  be  maintained. - 

Testing  the  prayer  of  the  bill  by  the  principles  laid  down  in  the  previous 
cases,  Mr.  Justice  Nelson  thus  continued  and  concluded  : 

That  these  matters,  both  as  stated  in  the  body  of  the  bill,  and,  in  the 
prayers  for  relief,  call  for  the  judgment  of  the  court  upon  political  ques- 
tions, and,  upon  rights,  not  of  persons  or  property,  but  of  a  political  char- 
acter, will  hardly  be  denied.  For  the  rights  for  the  protection  of  which  our 
authority  is  invoked,  are  the  rights  of  sovereignty,  of  political  jurisdiction, 
of  government,  of  corporate  existence  as  a  State,  with  all  its  constitutional 
powers  and  privileges.  No  case  of  private  rights  or  private  property  in- 
fringed, or  in  danger  of  actual  or  threatened  infringement,  is  presented  by 
the  bill,  in  a  judicial  form,  for  the  judgment  of  the  court. 

It  is  true,  the  bill,  in  setting  forth  the  political  rights  of  the  State,  and 
of  its  people  to  be  protected,  among  other  matters,  avers,  that  Georgia  owns 
certain  real  estate  and  buildings  therein,  State  capitol,  and  executive  man- 
sion, and  other  real  and  personal  property ;  and  that  putting  the  acts  of 
Congress  into  execution,  and  destroying  the  State,  would  deprive  it  of  the 
possession  and  enjoyment  of  its  property.  But,  it  is  apparent,  that  this 
reference  to  property  and  statement  concerning  it,  are  only  by  way  of  show- 
ing one  of  the  grievances  resulting  from  the  threatened  destruction  of  the 
State,  and  in  aggravation  of  it,  not  as  a  specific  ground  of  relief.  This 
matter  of  property  is  neither  stated  as  an  independent  ground,  nor  is  it 
noticed  at  all  in  the  prayers  for  relief.  Indeed  the  case,  as  made  in  the 
bill,  would  have  stopped  far  short  of  the  relief  sought  by  the  State,  and  its 
main  purpose  and  design  given  up,  by  restraining  its  remedial  effect,  simply 
to  the  protection  of  the  title  and  possession  of  its  property.  Such  relief 
would  have  called  for  a  very  different  bill  from  the  one  before  us. 

Having  arrived  at  the  conclusion  that  this  court,  for  the  reasons  above 
stated,  possesses  no  jurisdiction  over  the  subject-matter  presented  in  the 
bill  for  relief,  it  is  unimportant  to  examine  the  question  as  it  respects 
jurisdiction  over  the  parties  defendants.8 

In  the  very  recent  case  of  Pacific  Telephone  Company  v.  Oregon,  (223 
U.  S.,  118)  decided  in  1912,  a  political  question  was  again  before  the  Su- 
preme Court,  in  what  may  be  considered  a  leading  case,  and  the  opinion  of 

1  Ibid.,  75. 
•  Ibid.,  76. 
'  Ibid.,  77. 


390  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Mr.  Chief  Justice  White,  for  a  unanimous  court,  is  a  careful  analysis  of 
the  elements  which  in  that  case  formed  the  political  question,  because  of 
which  the  court  refused  to  entertain  jurisdiction. 

The  facts  in  the  case  were,  in  so  far  as  they  are  material  to  the  present 
purpose,  that  the  State  of  Oregon,  in  1902,  amended  its  Constitution,  intro- 
ducing what  is  called  the  Initiative  and  Referendum. 

"  As  to  the  first,"  to  quote  the  language  of  Chief  Justice  White  in  deliver- 
ing the  opinion  of  the  Court,  "  the  initiative,  it  suffices  to  say  that  a  stated, 
number  of  voters  were  given  the  right  at  any  time  to  secure  a  submission  to 
popular  vote  for  approval  of  any  matter  which  it  was  desired  to  have  enacted 
into  law,  and  providing  that  the  proposition  thus  submitted  when  approved 
by  popular  vote  should  become  the  law  of  the  State.  The  second,  the  referen- 
dum, provided  for  a  reference  to  a  popular  vote,  for  approval  or  disapproval, 
of  any  law  passed  by  the  legislature,  such  reference  to  take  place  either  as  the 
result  of  the  action  of  the  legislature  itself  or  of  a  petition  filed  for  that  pur- 
pose by  a  specified  number  of  voters."  *  That  is  to  say,  the  Initiative  pro- 
vided for  direct  legislation  by  the  people,  instead  of  by  a  select  body  of  per- 
sons representing  the  people  in  the  State  Legislature,  and  the  Referendum 
for  a  direct  and  specific  confirmation  or  rejection  by  the  people  of  acts  of  the 
Legislature,  instead  of  the  approval  or  disapproval  of  its  measures  by  the 
slower  process  of  defeating  or  reelecting  members  of  the  Legislature,  whose 
conduct  the  people  condemned  or  commended. 

By  resorting  to  the  Initiative  a  law  was  submitted  to  and  voted  by  the 
people  in  1903,  taxing  certain  classes  of  corporations,  by  virtue  of  which 
telephone  and  telegraph  companies  were  taxed  two  per  centum  as  an  annual 
license,  upon  their  gross  revenue  derived  from  business  done  within  the 
State;  and  penalties  were  provided  for  non-payment  in  case  of  delinquency. 

The  Pacific  Telephone  and  Telegraph  Company,  an  Oregon  corporation 
engaged  in  business  in  that  State,  made  return  of  its  gross  receipts  as  required 
by  the  law,  and  was  assessed  two  pef  centum  upon  the  amount  thereof. 
Upon  failure  to  pay  the  tax,  suit  was  brought  by  the  State,  to  enforce  payment 
and  to  recover  the  statutory  penalties  for  delinquency. 

The  Company  pleaded  among  other  defenses,  that  government  by  Initia- 
tive and  Referendum  was  not  the  Republican  form  of  government  under  the 
Constitution,  and  that  it  was  in  conflict  with  the  fourth  section  of  Article 
IV  thereof,  providing  that,  "  The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  Republican  Form  of  Government." 

Inasmuch  as  the  legality  of  the  Initiative  and  Referendum  was  the  basis 
of  the  defense,  the  case  reduced  itself,  to  quote  the  language  of  the  Chief 
Justice : 

1 223  U.  S.,  134. 


POWERS   OF   THE    SUPREME   COURT  391 

to  the  single  issue  whether  the  enforcement  of  that  provision,  because  of 
its  political  character,  is  exclusively  committed  to  Congress  or  is  judicial  in 
its  character.1 

After  calling  attention  to  the  fact  that  the  defense,  if  admitted,  would 
not  only  affect  the  present  Statute,  but  every  other  passed  "  in  Oregon  since 
the  adoption  of  the  initiative  and  referendum,"  the  Chief  Justice  proceeded 
thus  to  examine  the  nature  and  the  consequence  of  defendant's  contention : 

Let  us  briefly  fix  the  inconceivable  expansion  of  the  judicial  power  and 
the  ruinous  destruction  of  legislative  authority  in  matters  purely  political 
which  would  necessarily  be  occasioned  by  giving  sanction  to  the  doctrine 
which  underlies  and  would  be  necessarily  involved  in  sustaining  the  proposi- 
tions contended  for.  First.  That  however  perfect  and  absolute  may  be 
the  establishment  and  dominion  in  fact  of  a  state  government,  however  com- 
plete may  be  its  participation  in  and  enjoyment  of  all  its  powers  and  rights  as 
a  member  of  the  national  Government,  and  however  all  the  departments  of 
that  Government  may  recognize  such  state  government,  nevertheless  every 
citizen  of  such  State  or  person  subject  to  taxation  therein,  or  owing  any 
duty  to  the  established  government,  may  be  heard,  for  the  purpose  of 
defeating  the  payment  of  such  taxes  or  avoiding  the  discharge  of  such  duty, 
to  assail  in  a  court  of  justice  the  rightful  existence  of  the  State.  Second. 
As  a  result,  it  becomes  the  duty  of  the  courts  of  the  United  States,  where 
such  a  claim  is  made,  to  examine  as  a  justiciable  issue  the  contention  as  to 
the  illegal  existence  of  a  State  and  if  such  contention  be  thought  well  founded 
to  disregard  the  existence  in  fact  of  the  State,  of  its  recognition  by  all  the 
departments  of  the  Federal  Government,  and  practically  award  a  decree 
absolving  from  all  obligation  to  contribute  to  the  support  of  or  obey  the 
laws  of  such  established  state  government.  And  as  a  consequence  of  the 
existence  of  such  judicial  authority  a  power  in  the  judiciary  must  be  im- 
plied, unless  it  be  that  anarchy  is  to  ensue,  to  build  by  judicial  action  upon 
the  ruins  of  the  previously  established  government  a  new  one,  a  right  which 
by  its  very  terms  also  implies  the  power  to  control  the  legislative  department 
of  the  Government  of  the  United  States  in  the  recognition'of  such  new  gov- 
ernment and  the  admission  of  representatives  therefrom,  as  well  as  to  strip 
the  executive  department  of  that  government  of  its  otherwise  lawful  and 
discretionary  authority.2 

Still  further  pursuing  this  phase  of  the  subject  the  Chief  Justice  con- 
tinued : 

Do  the  provisions  of  §  4,  Art.  IV,  bring  about  these  strange,  far-reaching 
and  injurious  results?  That  is  to  say,  do  the  provisions  of  that  Article 
obliterate  the  division  between  judicial  authority  and  legislative  power  upon 
which  the  Constitution  rests?  In  other  words,  do  they  authorize  the  judiciary 
to  substitute  its  judgment  as  to  a  matter  purely  political  for  the  judgment 
of  Congress  on  a  subject  committed  to  it  and  thus  overthrow  the  Constitu- 

1  Ibid.,  137. 

2  Ibid.,  141-2. 


392  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

tion  upon  the  ground  that  thereby  the  guarantee  to  the  States  of  a  govern- 
ment republican  in  form  may  be  secured,  a  conception  which  after  all  rests 
upon  the  assumption  that  the  States  are  to  be  guaranteed  a  government 
republican  in  form  by  destroying  the  very  existence  of  a  government  repub- 
lican in  form  in  the  Nation. 

To  state  such  consequences  would  seem  to  refute  the  premises  upon  which 
they  were  based,  and  from  which  they  were  drawn;  and  it  was  not  necessary 
for  the  Chief  Justice  to  answer  theoretical  arguments  which  had  been  re- 
jected in  the  great  and  leading  case  of  Luther  v.  Borden,  (7  Howard,  1), 
decided  in  1849,  in  which  the  question  involved  in  the  guarantee  of  republican 
government  was  conclusively  shown  to  be  political,  not  judicial.  After  an 
elaborate  statement  of  the  facts  involved  in  the  case,  Mr.  Chief  Justice 
White  quoted  with  approval  the  following  language  of  Chief  Justice  Taney, 
in  that  case: 

Under  this  article  of  the  constitution  it  rests  with  congress  to  decide  what 
government  is  the  established  one  in  a  State.  For,  as  the  United  States 
guarantee  to  each  State  a  republican  government,  congress  must  necessarily 
decide  what  government  is  established  in  the  State  before  it  can  determine 
whether  it  is  republican  or  not.  And  when  the  senators  and  representatives 
of  a  State  are  admitted  into  the  councils  of  the  Union,  the  authority  of  the 
government  under  which  they  are  appointed,  as  well  as  its  republican  char- 
acter, is  recognized  by  the  proper  constitutional  authority.  And  its  decision 
is  binding  on  every  other  department  of  the  government,  and  could  not  be 
questioned  in  a  judicial  tribunal.  It  is  true  that  the  contest  in  this  case 
did  not  last  long  enough  to  bring  the  matter  to  this  issue ;  and  as  no  sena- 
tors or  representatives  were  elected  under  the  authority  of  the  government 
of  which  Mr.  Dorr  was  the  head,  Congress  was  not  called  upon  to  decide  the 
controversy.     Yet  the  right  to  decide  is  placed  there,  and  not  in  the  courts.1 

Stating  in  agreement  with  Mr.  Chief  Justice  Taney,  that  if  the  judicial 
power  extended  thus  far  it  is  "  a  guarantee  of  anarchy,  and  not  of  order," 
Mr.  Chief  Justice  White  thus  concluded  the  opinion  of  the  Court,  which 
can  well  be  taken  as  the  last  word  on  this  difficult  and  perplexing  sub- 
ject: 

It  is  indeed  a  singular  misconception  of  the  nature  and  character  of  our 
constitutional  system  of  government  to  suggest  that  the  settled  distinction 
which  the  doctrine  just  stated  points  out  between  judicial  authority  over 
justiciable  controversies  and  legislative  power  as  to  purely  political  ques- 
tions tends  to  destroy  the  duty  of  the  judiciary  in  proper  cases  to  enforce 
the  Constitution.  The  suggestion  but  results  from  failing  to  distinguish 
between  things  which  are  widely  different,  that  is,  the  legislative  duty  to 
determine  the  political  questions  involved  in  deciding  whether  a  state  gov- 
ernment republican  in  form  exists,  and  the  judicial  power  and  ever-present 
duty  whenever  it  becomes  necessary  in  a  controversy  properly  submitted  to 

'223  U.  S..  147. 


POWERS    OF   THE    SUPREME    COURT  393 

enforce  and  uphold  the  applicable  provisions  of  the  Constitution  as  to  each 
and  every  exercise  of  governmental  power. 

How  better  can  the  broad  lines  which  distinguish  these  two  subjects  be 
pointed  out  than  by  considering  the  character  of  the  defense  in  this  very 
case?  The  defendant  company  does  not  contend  here  that  it  could  not  have 
been  required  to  pay  a  license  tax.  It  does  not  assert  that  it  was  denied  an 
opportunity  to  be  heard  as  to  the  amount  for  which  it  was  taxed,  or  that 
there  was  anything  inhering  in  the  tax  or  involved  intrinsically  in  the  law 
which  violated  any  of  its  constitutional  rights.  If  such  questions  had  been 
raised  they  would  have  been  justiciable,  and  therefore  would  have  required 
the  calling  into  operation  of  judicial  power.  Instead,  however,  of  doing 
any  of  these  things,  the  attack  on  the  statute  here  made  is  of  a  wholly  dif- 
ferent character.  Its  essentially  political  nature  is  at  once  made  manifest  by 
understanding  that  the  assault  which  the  contention  here  advanced  makes  it 
not  on  the  tax  as  a  tax,  but  on  the  State  as  a  State.  It  is  addressed  to  the 
framework  and  political  character  of  the  government  by  which  the  statute 
levying  the  tax  was  passed.  It  is  the  government,  the  political  entity,  which 
(reducing  the  case  to  its  essence)  is  called  to  the  bar  of  this  court,  not  for 
the  purpose  of  testing  judicially  some  exercise  of  power  assailed,  on  the 
ground  that  its  exertion  has  injuriously  affected  the  rights  of  an  individual 
because  of  repugnancy  to  some  constitutional  limitation,  but  to  demand  of 
the  State  that  it  establish  its  right  to  exist  as  a  State,  republican  in  form. 

As  the  issues  presented,  in  their  very  essence,  are,  and  have  long  since 
by  this  court  been,  definitely  determined  to  be  political  and  governmental, 
and  embraced  within  the  scope  of  the  powers  conferred  upon  Congress,  and 
not  therefore  within  the  reach  of  judicial  power,  it  follows  that  the  case 
presented  is  not  within  our  jurisdiction,  and  the  writ  of  error  must  there- 
fore be,  and  it  is,  dismissed  for  want  of  jurisdiction.1 

'Ibid.,  149-51. 


XIX 

EXTENT  AND  EXERCISE  OF  JUDICIAL  POWER 

This  Constitution,  and  the  Laws  of  the  United  States  which  shall  be  made  in  Pursuance 
thereof;  and  all  Treaties  made,  or  which  shall  be  made,  under  the  Authority  of  the  United 
States,  shall  be  the  supreme  Law  of  the  Land ;  and  the  Judges  in  every  State  shall  be  bound 
thereby,  any  Thing  in  the  Constitution  or  Laws  of  any  State  to  the  Contrary  notwith- 
standing.    (Constitution  of  the  United  States,  Article  VI,  paragraph  2.) 

The  Judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to  any  suit 
in  law  or  equity,  commenced  or  prosecuted  against  one  of  the  United  States  by  Citizens  of 
another  State,  or  by  Citizens  or  Subjects  of  any  Foreign  State.  (Constitution  of  the 
United  States,  nth  Amendment,  adopted  1798.) 

By  the  constitution,  it  was  ordained  that  this  judicial  power,  in  cases  where  a  state 
was  a  party,  should  be  exercised  by  this  Court  as  one  of  original  jurisdiction.  The  states 
waived  their  exemption  from  judicial  power,  as  sovereigns  by  original  and  inherent  right, 
by  their  own  grant  of  its  exercise  over  themselves  in  such  cases,  but  which  they  would 
not  grant  to  any  inferior  tribunal.  By  this  grant,  this  Court  has  acquired  jurisdiction  over 
the  parties  in  this  cause,  by  their  own  consent  and  delegated  authority ;  as  their  agent  for 
executing  the  judicial  power  of  the  United  States  in  the  cases  specified.  (Mr.  Justice 
Baldwin  in  Rhode  Island  v  Massachusetts,  12  Peters,  657,  720,  decided  in  1838.) 

Our  next  inquiry  will  be,  whether  we  have  jurisdiction  of  the  subject  matters  of  the 
suit,  to  hear  and  determine  them. 

That  it  is  a  controversy  between  two  states,  cannot  be  denied ;  and  though  the  constitu- 
tion does  not,  in  terms,  extend  the  judicial  power  to  all  controversies  between  two  or 
more  states,  yet  it  in  terms  excludes  none,  whatever  may  be  their  nature  or  subject.  It  is, 
therefore,  a  question  of  construction,  whether  the-€ontroversy  in  the  present  case  is  within 
the  grant  of  judicial  power.  (Mr.  Justice  Baldwin  in  State  of  Rhode  Island  v.  State  of 
Massachusetts,  12  Peters,  657,  721,  decided  in  1838.) 

The  founders  of  our  government  could  not  but  know,  what  has  ever  been,  and  is 
familiar  to  every  statesman  and  jurist,  that  all  controversies  between  nations,  are,  in  this 
sense,  political,  and  not  judicial,  as  none  but  the  sovereign  can  settle  them.  .  .  .  None  can 
be  settled  without  war  or  treaty,  which  is  by  political  power;  but  under  the  old  and  new- 
confederacy  they  could  and  can  be  settled  by  a  court  constituted  by  themselves,  as  their 
own  substitutes,  authorized  to  do  that  for  states,  which  states  alone  could  do  before.  We 
are  thus  pointed  to  the  true  boundary  line  between  political  and  judicial  power,  and 
questions.  A  sovereign  decides  by  his  own  will,  which  is  the  supreme  law  within  his  own 
boundary;  6  Peters,  714;  9  Peters,  748;  a  court,  or  judge,  decides  according  to  the  law 
prescribed  by  the  sovereign  power,  and  that  law  is  the  rule  for  judgment.  The  submission 
by  the  sovereigns,  or  states,  to  a  court  of  law  or  equity,  of  a  controversy  between  them, 
without  prescribing  any  rule  of  decision,  gives  power  to  decide  according  to  the  appropriate 
law  of  the  case;  11  Ves.  294;  which  depends  on  the  subject  matter,  the  source  and 
nature  of  the  claims  of  the  parties,  and  the  law  which  governs  them.  From  the  time  of 
such  submission,  the  question  ceases  to  be  a  political  one,  to  be  decided  by  the  sic  volo,  sic 
jubeo,  of  political  power;  it  comes  to  the  court  to  be  decided  by  its  judgment,  legal 
discretion,  and  solemn  consideration  of  the  rules  of  law  appropriate  to  its  nature  as  a 
judicial  question,  depending  on  the  exercise  of  judicial  power;  as  it  is  bound  to  act  by 
known  and  settled  principles  of  national  or  municipal  jurisprudence,  as  the  case  requires. 

It  has  never  been  contended  that  prize  courts  of  admiralty  jurisdiction,  or  questions 
before  them,  are  not  strictly  judicial;  they  decide  on  questions  of  war  and  peace,  the  law 
of  nations,  treaties,  and  the  municipal  laws  of  the  capturing  nation,  by  which  alone  they 
are  constituted;  a  fortiori,  if  such  courts  were  constituted  by  a  solemn  treaty  between  the 
state  under  whose  authority  the  capture  was  made,  and  the  state  whose  citizens  or  subjects 

394 


EXTENT    AND    EXERCISE    OF    JUDICIAL    POWER  395 

suffer  by  the  capture.     All   nations   submit  to  the  jurisdiction  of   such   courts   over  their 
subjects,  and  hold  their  final  decrees  conclusive  on  rights  of  property.     6  Cr.  284-5. 

These  considerations  lead  to  the  definition  of  political  and  judicial  power  and  ques- 
tions ;  the  former  is  that  which  a  sovereign  or  state  exerts  by  his  or  its  own  authority, 
as  reprisal  and  confiscation;  3  Ves.  429:  the  latter  is  that  which  is  granted  to  a  court  or 
judicial  tribunal.  So  of  controversies  between  states;  they  are  in  their  nature  political, 
when  the  sovereign  or  state  reserves  to  itself  the  right  of  deciding  on  it ;  makes  it  the 
"subject  of  a  treaty,  to  be  settled  as  between  states  independent,"  or  "the  foundation 
of  representations  from  state  to  state."  This  is  political  equity,  to  be  adjudged  by  the 
parties  themselves,  as  contradistinguished  from  judicial  equity,  administered  by  a  court  of 
justice,  decreeing  the  equum  et  bonum  of  the  case,  let  who  or  what  be  the  parties  before 
them.  (Mr.  Justice  Baldwin  in  Rhode  Island  v.  Massachusetts,  12  Peters,  657,  736-738, 
decided  in  1838.) 

The  grant  of  judicial  power  is  not  confined  to  the  administration  of  laws  passed  in 
pursuance  to  the  provisions  of  the  Constitution,  nor  confined  to  the  interpretation  of  such 
laws;  but,  by  the  very  terms  of  the  grant,  the  Constitution  is  under  their  view  when  any 
act  of  Congress  is  brought  before  them,  and  it  is  their  duty  to  declare  the  law  void,  and 
refuse  to  execute  it,  if  it  is  not  pursuant  to  the  legislative  powers  conferred  upon  Congress. 
And  as  the  final  appellate  power  in  all  such  questions  is  given  to  this  court,  controversies 
as  to  the  respective  powers  of  the  United  States  and  the  States,  instead  of  being  deter- 
mined by  military  and  physical  force,  are  heard,  investigated,  and  finally  settled,  with  the 
calmness  and  deliberation  of  judicial  inquiry.  And  no  one  can  fail  to  see,  that  if  such  an 
arbiter  had  not  been  provided,  in  our  complicated  system  of  government,  internal  tran- 
quillity could  not  have  been  preserved;  and  if  such  controversies  were  left  to  arbitrament 
of  physical  force,  our  Government,  State  and  National,  would  soon  cease  to  be  Governments 
of  laws,  and  revolutions  by  force  of  arms  would  take  the  place  of  courts  of  justice  and 
judicial  decisions. 

In  organizing  such  a  tribunal,  it  is  evident  that  every  precaution  was  taken,  which 
human  wisdom  could  devise,  to  fit  it  for  the  high  duty  with  which  it  was  intrusted  .  .  . 
This  tribunal,  therefore,  was  erected,  and  the  powers  of  which  we  have  spoken  conferred 
upon  it,  not  by  the  Federal  Government,  but  by  the  people  of  the  States,  who  formed  and 
adopted  that  Government,  and  conferred  upon  it  all  the  powers,  legislative,  executive,  and 
judicial,  which  it  now  possesses.  And  in  order  to  secure  its  independence,  and  enable  it 
faithfully  and  firmly  to  perform  its  duty,  it  engrafted  it  upon  the  Constitution  itself,  and 
declared  that  this  court  should  have  appellate  power  in  all  cases  arising  under  the  Con- 
stitution and  laws  of  the  United  States.  So  long,  therefore,  as  this  Constitution  shall 
endure,  this  tribunal  must  exist  with  it,  deciding  in  the  peaceful  forms  of  judicial  proceed- 
ing the  angry  and  irritating  controversies  between  sovereignties,  which  in  other  countries 
have  been  determined  by  the  arbitrament  of  force.  (Chief  Justice  Taney  in  Ableman  v. 
Booth,  21  Howard,  506,  520-521,  decided  in  1858.) 

A  court  is  a  tribunal  presided  over  by  one  or  more  judges,  for  the  exercise  of  such 
judicial  power  as  has  been  conferred  upon  it  by  law.  Blackstone,  following  Coke,  defines 
it  as  "a  place  where  justice  is  judicially  administered"  (3  Bl.  Com.  23);  but  it  is  also 
essential  that  this  place  be  designated  by  law,  and  that  the  person  or  persons  authorized 
to  administer  justice  be  at  that  place  for  the  purpose  of  administering  justice  at  such 
times  as  may  be  also  designated  by  law.  The  times  fixed  by  law  for  the  transaction  of 
judicial  business  are  called  "terms,"  and  the  periods  between  the  end  of  one  term  and 
the  beginning  of  the  next  are  called  "vacations."  These  "terms"  vary  in  different  juris- 
dictions according  to  the  statutes  by  which  they  are  fixed,  in  some  states  ending  at  fixed 
dates  and  in  others  continuing  until  the  commencement  of  a  succeeding  term.  (Mr. 
Justice  Harrison  in  Von  Schmidt  v.  Widber,  09  California,  511,  512,  decided  in  1803.) 

As  jurisdiction  is  the  first  question  which  must  arise  in  every  cause,  I  have  confined  my 
examination  of  this,  entirely  to  that  point,  and  that  branch  of  it  which  relates  to  the 
capacity  of  the  plaintiffs  to  ask  the  interposition  of  this  court.   .    .    . 

In  my  opinion  there  is  no  plaintiff  in  this  suit;  and  this  opinion  precludes  any  examina- 
tion into  the  merits  of  the  bill,  or  the  weight  of  any  minor  objections.  My  judgment 
stops  me  at  the  threshold,  and  forbids  me  to  examine  into  the  acts  complained  of.  (Mr. 
Justice  Baldwin  in  Cherokee  Nation  v.  State  of  Georgia,  5  Peters,  1,  31-32,  decided  in 

mi.) 

The  power  to  hear  and  determine  a  cause  is  jurisdiction;  it  is  "coram  judicc."  when- 
ever a  case  is  presented  which  brings  this  power  into  action;  if  the  petitioner  states  such 


3%  THE  UNITED  STATES:  A  STUDY   IN   INTERNATIONAL  ORGANIZATION 

a  case  in  this  petition,  that  on  a  demurrer,  the  court  would  render  judgment  in  his  favor, 
it  is  an  undoubted  case  of  jurisdiction;  whether  on  an  answer  denying  and  putting  in  issue 
the  allegations  of  the  petition,  the  petitioner  makes  out  his  case,  is  the  exercise  of  juris- 
diction conferred  by  the  filing  of  a  petition  containing  all  the  requisites  and  in  the  manner 
prescribed  by  law.  (Mr.  Justice  Baldwin,  in  United  States  v.  Arredondo,  6  Peters,  (*)i, 
700,  decided  in  1832.) 

The  case  is  now  before  us  for  consideration,  on  a  motion  by  the  defendant,  to  dismiss 
the  bill  for  want  of  jurisdiction  in  the  cause. 

However  late  this  objection  has  been  made,  or  may  be  made  in  any  cause,  in  an 
inferior  or  appellate  court  of  the  United  States,  it  must  be  considered  and  decided,  before 
any  court  can  move  one  further  step  in  the  cause ;  as  any  movement  is  necessarily  the 
exercise  of  jurisdiction.  Jurisdiction  is  the  power  to  hear  and  determine  the  subject 
matter  in  controversy  between  parties  to  a  suit,  to  adjudicate  or  exercise  any  judicial 
power  over  them;  the  question  is,  whether  on  the  case  before  a  court,  their  acfion  is 
judicial  or  extra-judicial;  with  or  without  the  authority  of  law,  to  render  a  judgment  or 
decree  upon  the  rights  of  the  litigant  parties.  If  the  law  confers  the  power  to  render 
a  judgment  or  decree,  then  the  court  has  jurisdiction;  what  shall  be  adjudged  or  decreed 
between  the  parties,  and  with  which  is  the  right  of  the  case,  is  judicial  action,  by  hearing 
and  determining  it.    6  Peters,  709;  4  Russell,  415;  3  Peters,  203-7. 

A  motion  to  dismiss  a  cause  pending  in  the  courts  of  the  United  States,  is  not  analogous 
to  a  plea  to  the  jurisdiction  of  a  court  of  common  law  or  equity  in  England;  there  the 
superior  courts  have  a  general  jurisdiction  over  all  persons  within  the  realm,  and  all 
causes  of  action  between  them.  It  depends  on  the  subject  matter,  whether  the  jurisdiction 
shall  be  exercised  by  a  court  of  law  or  equity;  but  that  court,  to  which  it  appropriately 
belongs,  can  act  judicially  upon  the  party  and  the  subject  of  the  suit;  unless  it  shall  be 
made  apparent  to  the  court  that  the  judicial  determination  of  the  case  has  been  withdrawn 
from  the  court  of  general  jurisdiction,  to  an  inferior  and  limited  one.   .    .    . 

But  as  this  Court  is  one  of  limited  and  special  original  jurisdiction,  its  action  must  be 
confined  to  the  particular  cases,  controversies,  and  parties  over  which  the  constitution 
and  laws  have  authorized  it  to  act;  any  proceeding  without  the  limits  prescribed,  is  coram 
non  judice,  and  its  action  a  nullity.  10  Peters,  474;  S.  P.  4  Russ.  415.  And  whether  the 
want  or  excess  of  power  is  objected  by  a  party,  or  is  apparent  to  the  Court,  it  must 
surcease  its  action,  or  proceed  extra-judicially. 

Before  we  can  proceed  in  this  cause  we  must,  therefore,  inquire  whether  we  can  hear 
and  determine  the  matters  in  controversy  between  the  parties,  who  are  two  states  of  this 
Union,  sovereign  within  their  respective  boundaries,  save  that  portion  of  power  which  they 
have  granted  to  the  federal  government,  and  foreign  to  each  other  for  all  but  federal 
purposes  (Mr.  Justice  Baldwin  in  State  of  Rhode  Island  v.  State  of  Massachusetts,  12 
Peters,  657,  718,  720,  decided  in  1838.) 

The  power  to  hear  and  determine  a  cause  is  jurisdiction;  and  it  is  coram  judice  when- 
ever a  case  is  presented  which  brings  this  power  into  action.  But  before  this  power  can 
be  affirmed  to  exist,  it  must  be  made  to  appear  that  the  law  has  given  the  tribunal  capacity 
to  entertain  the  complaint  against  the  person  or  thing  sought  to  be  charged  or  affected; 
that  such  complaint  has  actually  been  preferred  ;  and  that  such  person  or  thing  has  been 
properly  brought  before  the  tribunal  to  answer  the  charge  therein  contained.  When  these 
appear,  the  jurisdiction  has  attached;  the  right  to  hear  and  determine  is  perfect;  and  the 
decision  of  every  question  thereafter  arising  is  but  the  exercise  of  the  jurisdiction  thus 
conferred;  and  whether  determined  rightfully  or  wrongfully,  correctly  or  erroneously,  is 
alike  immaterial  to  the  validity,  force,  and  effect  of  the  final  judgment,  when  brought 
collaterally  in  question.  (Mr.  Justice  Ranney  in  Sheldon  v.  Newton,  3  Ohio  St.  404,  400, 
decided  in  1854.) 

The  cases  in  this  court  show  that  the  framers  of  the  Constitution  did  provide,  by  that 
instrument,  for  the  judicial  determination  of  all  cases  in  law  and  equity  between  two  or 
more  States,  including  those  involving  questions  of  boundary.  Did  they  omit  to  provide 
for  the  judicial  determination  of  controversies  arising  between  the  United  States  and  one 
or  more  of  the  States  of  the  Union?  This  question  is  in  effect  answered  by  United  States 
v.  North  Carolina.  136  U.  S.  211.  That  was  an  action  of  debt  brought  in  this  court  by  the 
United  States  against  the  State  of  North  Carolina,  upon  certain  bonds  issued  by  tliat 
State.  The  State  appeared,  the  case  was  determined  here  upon  its  merits,  and  judgment 
was  rendered  for  the  State.  It  is  true  that  no  question  was  made  as  to  the  jurisdiction  of 
this  court,  and  nothing  was  therefore  said  in  the  opinion  upon  that  subject.  But  it  did 
not  escape  the  attention  of  the  court,  and  the  judgment  would  not  have  been   rendered 


EXTENT   AND   EXERCISE  OF  JUDICIAL  POWER  397 

except  upon  the  theory  that  this  court  has  original  jurisdiction  of  a  suit  by  the  United 
States  against  a  State.  As,  however,  the  question  of  jurisdiction  is  vital  in  this  case,  and 
is  distinctly  raised,  it  is  proper  to  consider  it  upon  its  merits.  (Mr.  Justice  Harlan  in 
United  States  v.  State  of  Texas,  143  United  States,  621,  642,  decided  in  1892.) 

We  think  these  proceedings  were  instituted  under  a  mistaken  apprehension  of  the  proper 
functions  of  the  judiciary.  Courts  of  justice  are  established  to  try  questions  pertaining  to 
the  rights  of  individuals  An  action  is  the  form  of  a  suit  given  by  law  for  the  recovery 
of  that  which  is  one's  due,  or  a  legal  demand  of  one's  right.  .  .  .  But  courts  will  not  go 
out  of  their  proper  sphere  to  determine  the  constitutionality  or  unconstitutionality  of  a 
law.  They  will  not  declare  a  law  unconstitutional  or  void  in  the  abstract,  for  that  would 
be  interfering  with  the  legislative  power,  which  is  separate  and  distinct  .  .  .  But  unless 
some  individual  right  directly  affecting  the  parties  litigant  is  thus  brought  in  question,  so 
that  a  judicial  decision  becomes  necessary  to  settle  the  matters  in  controversy  between 
them  relative  thereto,  the  courts  have  no  jurisdiction;  and  it  would  be  a  perversion  of 
the  purposes  for  which  they  were  instituted,  and  an  assumption  of  functions  that  do  not 
belong  to  them,  to  undertake  to  settle  abstract  questions  of  law,  in  whatever  shape  such 
questions  may  be  presented.  .  .  .  Indeed,  it  is  well  settled,  that  courts  will  not  take 
cognizance  of  fictitious  suits,  instituted  merely  to  obtain  judicial  opinions  upon  points  of 
law.  ...  As  we  are  distinctly  informed  by  both  parties  that  this  is  a  fictitious  suit, 
without  enquiring  into  the  grounds  upon  whch  the  judgment  was  rendered,  as  it  was  for 
the  defendant  and  only  for  costs,  the  judgment  below  will  be  affirmed  at  the  plaintiff's  costs 
in  this  court.  (Mr.  Justice  Smith  in  Brewing  ton  v.  Lowe,  1  Indiana,  79,  So-81,  decided  in 
1848.) 

No  consent  of  counsel  can  give  jurisdiction.  Appellate  jurisdiction  depends  on  the 
Constitution  and  the  acts  of  Congress.  When  these  do  not  confer  it,  courts  of  the  United 
States  cannot  exercise  it. 

We  cannot  take  cognizance  of  a  case  not  brought  before  us  in  conformity  with  the  law. 

The  case  at  bar,  therefore,  must  be  dismissed.  (Chief  Justice  Chase  in  The  Lucy, 
8  Wallace,  307,  309-310,  decided  in  1868.) 

Since  men  are  naturally  equal,  and  their  rights  and  obligations  are  the  same,  as  equally 
proceeding  from  nature,  nations  composed  of  men  considered  as  so  many  free  persons, 
living  together  in  the  state  of  nature,  are  naturally  equal,  and  receive  from  nature  the 
same  obligations  and  rights.  ...  A  dwarf  is  as  much  a  man  as  a  giant ;  a  small  republic  is 
as  much  a  sovereign  state  as  the  most  powerful  kingdom.  (M.  de  Vattel,  The  Law  of  Na- 
tions; or  Principles  of  the  Law  of  Nature:  Applied  to  the  Conduct  and  Affairs  of  Nations' 
and  Sovereigns,  1758.     Translated  from  the  French,  Vol.  I,  1760,  p.  6.) 

One  cardinal  rule,  underlying  all  the  relations  of  the  States  to  each  other,  is  that  of 
equality  of  right.  Each  State  stands  on  the  same  level  with  all  the  rest.  It  can  impose  its 
own  legislation  on  no  one  of  the  others,  and  is  bound  to  yield  its  own  views  to  none  Yet, 
whenever,  as  in  the  case  of  Missouri  v.  Illinois,  180  U  S  208,  the  action  of  one  State 
reaches  through  the  agency  of  natural  laws  into  the  territory  of  another  State,  the  question 
of  the  extent  and  the  limitations  of  the  rights  of  the  two  States  becomes  a  matter  of 
justiciable  dispute  between  them,  and  this  court  is  called  upon  to  settle  that  dispute  in 
such  a  way  as  will  recognize  the  equal  rights  of  both  and  at  the  same  time  establish  justice 
between  them.  In  other  words,  through  these  successive  disputes  and  decisions  this  court 
is  practically  building  up  what  may  not  improperly  be  called  interstate  common  law.  (Mr. 
Justice  Brewer  in  Kansas  v.  Colorado,  206  United  States,  46,  97-8,  decided  in  1907.) 


CHAPTER  XIX 

EXTENT    AND    EXERCISE    OF    JUDICIAL    POWER 

The  .  After  having  considered  at  some  length  the  nature  of  judicial  power, 

of  Extent  and  the  powers  of  the  Supreme  Court  under  the  Constitution,  we  are  pre- 

pared to  take  up  the  question  of  the  extent  of  judicial  power  and  the  man- 
ner in  which  it  is  to  be  exercised.  The  first  part  of  this  question  need  not 
long  detain  us,  for  the  Constitution  itself  has  determined  the  extent  of  the 
judicial  power  of  the  United  States,  which  can  only  be  enlarged,  lessened, 
or  modified  by  an  amendment  to  the  Constitution  of  the  United  States.  In 
the  second  section  of  Article  II  it  is  said : 

The  judicial  Power  shall  extend  to  all  Cases,  in  Law  and  Equity,  aris- 
ing under  this  Constitution,  the  Laws  of  the  United  States,  and  Treaties 
made,  or  which  shall  be  made,  under  their  Authority ;  —  to  all  Cases  affect- 
ing Ambassadors,  other  public  Ministers  and  Consuls ;  —  to  all  Cases  of 
admiralty  and  maritime  Jurisdiction  ;  —  to  Controversies  to  which  the  United 
States  shall  be  a  Party;  —  to  Controversies  between  two  or  more  States;  — 
between  a  State  and  Citizens  of  another  State ;  —  between  Citizens  of  differ- 
ent States ;  —  between  Citizens  of  the  same  State  claiming  Lands  under 
Grants  of  different  States,  and  between  a  State,  or  the  Citizens  thereof, 
and  foreign  States,  Citizens  or  Subjects. 

In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and  Consuls, 
and  those  in  which  a  State  shall  be  Party,  the  supreme  Court  shall  have 
original  Jurisdiction.  In  all  the  other  Cases  before  mentioned,  the  supreme 
Court  shall  have  appellate  Jurisdiction,  both  as  to  Law  and  Fact,  with  such 
Exceptions,  and  under  such  Regulations  as  the  Congress  shall  make. 

It  will  be  observed  that,  in  the  first  of  these  two  paragraphs,  all  of  the 
cases  are  enumerated  to  which  the  judicial  power  of  the  United  States  shall 
extend,  that  in  the  second  paragraph  the  distinction  is  drawn  between  original 
and  appellate  jurisdiction  of  the  Supreme  Court,  leaving  the  Congress  free 
to  vest  in  the  inferior  courts  which  it  may  establish  the  other  phases  of  the 
judicial  power;  but  with  the  significant  proviso  that,  in  all  the  cases  to 
which  the  judicial  power  of  the  United  States  extends,  with  the  necessary 
exception  of  cases  of  original  jurisdiction,  the  Supreme  Court  "  shall  have 
appellate  Jurisdiction,  both  as  to  Law  and  Fact,  with  such  Exceptions,  and 
under  such  Regulations  as  the  Congress  shall  make." 

It  is  further  to  be  observed  that  appellate  jurisdiction  is  not  confined  to 
cases  originating  in  the  inferior  courts  "  as  Congress  may  from  time  to  time 

398 


EXTENT    AND    EXERCISE    OF    JUDICIAL    POWER  399 

ordain  and  establish,"  but  that  it  extends  to  all  cases  specified  in  the  grant 
of  power,  whether  they  be  begun  in  a  State  or  Federal  court;  and  that,  first 
and  foremost  among  such  cases,  are  those  in  law  and  equity  "  arising  under 
this  Constitution,  the  Laws  of  the  United  States,  and  Treaties  made,  or 
which  shall  be  made,  under  their  Authority."  The  Government  of  the  Union 
is  a  government  of  enumerated  powers,  and  therefore  of  limited  jurisdic- 
tion; but  within  the  extent  of  those  powers  it  is  supreme,  and  the  propriety 
or  impropriety  of  its  action  is  to  be  determined,  in  the  last  resort,  by  the 
Supreme  Court  of  the  States,  whose  agent  it  is,  not  by  the  States  them- 
selves. 

The  judicial  power  of  the  United  States  is  thus,  in  its  entirety,  vested 
in  a  Federal  court,  whether  it  be  supreme  or  inferior.  It  was  proposed  and 
urged  in  the  Federal  Convention  to  vest  the  courts  of  the  individual  States 
with  jurisdiction  and  to  allow  an  appeal  from  the  judgments  of  the  State 
courts  to  the  Supreme  Court  of  the  United  States,  in  order  to  secure  uni- 
formity of  decision  by  the  use  of  existing  agencies.  But  the  framers  of 
the  Constitution  decided,  wisely,  as  experience  shows,  in  favor  of  a  judi- 
cial agency  of  the  United  States  as  a  whole,  in  preference  to  the  use 
of  a  court  of  any  particular  State  as  the  common  agency  of  the 
States. 

By  the  first  section  of  the  third  article  of  the  Constitution,  "  The  judicial 
Power  of  the  United  States,  shall  be  vested  in  one  Supreme  Court,  and  in 
such  inferior  Courts  "  as  may  be  established  from  time  to  time  by  the  Con- 
gress. In  the  second  section  of  the  same  Article  this  Supreme  Court  is 
invested  with  original  jurisdiction  "  in  all  cases  affecting  Ambassadors, 
other  public  Ministers  and  Consuls,  and  those  in  which  a  State  shall  be  a 
party."  These  were  matters  of  supreme  importance,  and  therefor-  con- 
fided to  the  Supreme  Court  if,  as  will  be  seen,  the  beneficiaries  chose  to 
consider  its  jurisdiction  exclusive  and  availed  themselves  of  the  Supreme 
instead  of  an  inferior  tribunal.  This  does  not  mean  that  the  other  cases 
to  which  the  judicial  power  was  extended  were  not  important,  but  that,  in 
the  opinion  of  the  framers" of  the  Constitution,  they  might  arise  and  be 
decided  in  inferior  tribunals  of  the  State  or  of  the  United  States,  subject 
to  appeal  to  the  Supreme  Court  in  order  to  correct  error  and  to  ensure  uni- 
formity of  decision.  As  we  are  dealing  with  technical  matters,  it  is  well 
to  be  technical,  and  to  define  the  sense  in  which  these  terms  are  used  and 
understood  in  order  to  make  for  comprehension  and  clearness,  even  if  the 
terms  are  so  familiar  that  they  seem  to  carry  their  own  meaning  with  them. 

In  rendering  the  opinion  of  the  court  in  the  case  of  White  County  Com- 
missioners v.  Givin  (136  Indiana  Reports,  562,  577),  decided  in  1893,  Mr. 
Justice  McCabe  said,  on  behalf  of  his  brethren: 


400 


THE   UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


Court 
Defined 


In  modern  times,  and  under  our  form  of  government,  the  judicial  power 
is  exercised  by  means  of  courts.  A  court  is  an  instrumentality  of  govern- 
ment. It  is  a  creation  of  the  law,  and  in  some  respects  it  is  an  imaginary 
thing,  that  exists  only  in  legal  contemplation,  very  similar  to  a  corporation. 
A  time  when,  a  place  where,  and  the  persons  by  whom  judicial  functions 
are  to  be  exercised,  are  essential  to  complete  the  idea  of  a  court.  It  is  in 
its  organized  aspect,  with  all  these  constituent  elements  of  time,  place,  and 
officers,  that  completes  the  idea  of  a  court  in  the  general  legal  acceptation 
of  the  term. 


The  word 
"  Supreme  ' 


This  is  the  language  of  a  State  court,  but  the  idea  pervades  the  United 
States  as  well  as  the  States,  and  to  show  its  universality  the  decision  of  a 
State  has  been  chosen  in  preference  to  that  of  a  Federal  court. 

For  a  like  reason,  the  definition  of  a  supreme  court  is  taken  from  the 
opinion  of  Mr.  Justice  Dent  in  the  case  of  Koonce  v.  Doolittle  (48  W.  Va. 
Rep.,  592,  594),  decided  in  1900,  who  says: 

The  word  "  Supreme "  meaning  highest  in  the  sense  of  final  or  last 
resort.  Here  all  litigation  must  end,  and  when  this  Court  has  once  finally 
determined  a  question  it  has  no  power  to  reopen  it. 


Fina,ity  It  will  be  noted  that  two  elements  are  present  and  must  coexist — finality 

as  regards  the  litigant  and  finality  as  regards  the  court.  That  is  to  say,  it 
is  the  last  court  to  which  the  case  can  be  carried,  and,  when  that  court  has 
finally  decided  the  case,  it  has  exhausted  the  judicial  power  with  which  it 
is  vested,  and,  because  thereof,  it  has  no  power  to  reopen  it. 

jurisdiction  But  something  more  is  needed  to  complete  the  idea  of  a  court,  whether 

it  be  a  supreme  or  inferior  tribunal.  That  idea  is  contained  in  the  term 
"  jurisdiction,"  which,  like  the  other  two,  has  been  admirably  defined  by  a 
State  judge  in  the  case  of  Munday  v.  Vail  (34  N.  J.  Law  Rep.,  418,  422), 
decided  in  1871,  in  which  Mr.  Chief  Justice  Beasley,  speaking  for  his 
brethren,  said : 

Jurisdiction  may  be  defined  to  be  the  right  to  adjudicate  concerning  the 
subject  matter  in  the  given  case.  To  constitute  this  there  are  three  essen- 
tials :  First.  The  court  must  have  cognizance  of  the  class  of  cases  to  which 
the  one  to  be  adjudged  belongs.  Second.  The  proper  parties  must  be 
present.  And,  Third.  The  point  decided  must  be,  in  substance  and  effect, 
within  the  sphere,  and  that  its  action  is  void  with  respect  to  persons  who 
are  strangers  to  its  proceedings,  are  propositions  established  by  a  multitude 
of  authorities. 


A  matter  of  fundamental  importance  in  this  connection  is  that  a  court 
of  limited  jurisdiction,  as  are  the  Federal  courts,  Supreme  as  well  as  infe- 
rior, must,  before  it  entertains  a  case,  decide  for  itself  whether  it  possesses 


EXTENT   AND    EXERCISE   OF   JUDICIAL    POWER  401 

jurisdiction,  and  whether  it  can  lawfully  assume  and  finally  decide  the  case  Determination 
presented  to  it.  In  this  regard  the  federal  differ  from  courts  of  general 
jurisdictions,  in  which,  it  is  to  be  presumed,  unless  the  contrary  be  shown, 
that  jurisdiction  exists,  with  its  necessary  consequences.  In  the  opening 
sentence  of  his  opinion  in  Cherokee  Nation  v.  Georgia  (5  Peters,  1,  31), 
decided  in  1831,  Mr.  Justice  Baldwin  said  that  he  had  confined  his  exam- 
ination of  the  case  to  the  point  of  jurisdiction,  "  as  jurisdiction  is  the  first 
question  which  must  confront  us  in  every  case."  And,  delivering  the  opinion 
of  the  court  in  the  great  and  leading  case  of  Rhode  Island  v.  Massachusetts 
(12  Peters,  657,  718),  decided  seven  years  later,  he  had  occasion  to  consider 
the  matter  of  jurisdiction  in  detail,  inasmuch  as  Massachusetts  objected  to 
the  jurisdiction  of  the  Supreme  Court  in  the  bill  against  it  filed  by  Rhode 
Island  and  to  make  clear  the  distinction,  so  important  in  federal  courts,  be- 
tween tribunals  of  general  and  limited  powers.  On  the  first  phase  of  the 
subject  he  said : 

However  late  this  objection  has  been  made,  or  may  be  made  in  any 
cause,  in  an  inferior  or  appellate  court  of  the  United  States,  it  must  be 
considered  and  decided,  before  any  court  can  move  one  further  step  in  the 
cause ;  as  any  movement  is  necessarily  the  exercise  of  jurisdiction.  Juris- 
diction is  the  power  to  hear  and  determine  the  subject  matter  in  contro- 
versy between  parties  to  a  suit,  to  adjudicate  or  exercise  any  judicial  power 
over  them ;  the  question  is,  whether  on  the  case  before  a  court,  their  action 
is  judicial  or  extra-judicial ;  with  or  without  the  authority  of  law,  to  render 
a  judgment  or  decree  upon  the  rights  of  the  litigant  parties.  If  the  law 
confers  the  power  to  render  a  judgment  or  decree,  then  the  court  has  juris- 
diction; what  shall  be  adjudged  or  decreed  between  the  parties,  and  with 
which  is  the  right  of  the  case,  is  judicial  action,  by  hearing  and  determin- 
ing it. 

On  the  second  branch  of  the  question,  the  learned  Justice  observed : 

A  motion  to  dismiss  a  cause  pending  in  the  courts  of  the  United  States, 
is  not  analagous  to  a  plea  to  the  jurisdiction  of  a  court  of  common  law  or 
equity  in  England;  there  the  superior  courts  have  a  general  jurisdiction 
over  all  persons  within  the  realm,  and  all  causes  of  action  between  them. 
It  depends  on  the  subject  matter,  whether  the  jurisdiction  shall  be  exer- 
cised by  a  court  of  law  or  equity ;  but  that  court,  to  which  it  appropriately 
belongs,  can  act  judicially  upon  the  party  and  the  subject  of  the  suit;  unless 
it  shall  be  made  apparent  to  the  court  that  the  judicial  determination  of 
the  case  has  been  withdrawn  from  the  court  of  general  jurisdiction.    .    .    . 

As  a  denial  of  jurisdiction  over  the  subject  matter  of  a  suit  between 
parties  within  the  realm,  over  which  and  whom  the  court  has  power  to  act, 
cannot  be  successful  in  an  English  court  of  general  jurisdiction;  a  motion 
like  the  present  could  not  be  sustained  consistently  with  the  principles  of 
its  constitution.  But  as  this  Court  is  one  of  limited  and  special  original 
jurisdiction,  its  action  must  be  confined  to  the  particular  cases,  controver- 
sies, and  parties  over  which  the  constitution  and  laws  have  authorized  it 


402  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

to  act;  any  proceeding  without  the  limits  prescribed,  is  coram  non  judice, 
and  its  action  a  nullity.  .  .  .  And  whether  the  want  or  excess  of  power 
is  objected  by  a  party,  or  is  apparent  to  the  Court,  it  must  surcease  its 
action,  or  proceed  extra-judicially. 

Before  we  can  proceed  in  this  cause  we  must,  therefore,  inquire  whether 
we  can  hear  and  determine  the  matters  in  controversy  between  the  parties, 
who  are  two  states  of  this  Union,  sovereign  within  their  respective 
boundaries,  save  that  portion  of  power  which  they  have  granted  to  the 
federal  government,  and  foreign  to  each  other  for  all  but  federal  purposes.1 

It  will  not  have  escaped  attention  that,  after  denning  the  original  juris- 
diction of  the  Supreme  Court  and  limiting  it  to  ambassadors,  public  min- 
isters, consuls,  and  cases  to  which  a  State  was  a  party,  the  Constitution 
declared  that  "  the  Supreme  Court  shall  have  appellate  jurisdiction,  both  as 
to  law  and  fact,  with  such  exceptions  and  under  such  regulations  as  the 
Congress  shall  make."  It  is  evident  that  the  intervention  of  Congress  was 
necessary,  inasmuch  as  the  appellate  jurisdiction  to  be  exercised  by  the 
courts  was  not  to  be  denned  by  them  but  exercised  according  to  a  rule  which 
the  Congress  should  make.  Until  Congress  had  acted,  the  Supreme  Court 
could  exercise  the  original  jurisdiction  expressly  conferred  upon  it  by  the 
Constitution,  but  could  not  sit  as  an  appellate  tribunal  until  inferior  tri- 
bunals had  been  established,  from  whose  judgments  an  appeal  might  be 
taken,  or  until  the  manner  of  appeal  from  State  courts  should  have  been 
determined. 

The  first  Congress  accordingly  proceeded  to  execute  this  power  with 

which  it  was  vested,  pursuant  to  the  authorization  contained  in  Article  I, 

"judiciary  Section  8,  clause  18,  "  to  make  all  Laws  which  shall  be  necessary  and  proper 

Act " 

for  carrying  into  Execution  the  foregoing  Powers,  and  all  other  Powers 
vested  by  this  Constitution  in  the  Government  of  the  United  States,  or  in 
any  Department  or  Officer  thereof."  The  result  of  its  labors,  in  so  far  as 
the  courts  are  concerned,  is  embraced  in  the  act  to  establish  the  judicial 
courts  of  the  United  States,  approved  September  24,  1789,  providing,  among 
other  things,  that  the  Supreme  Court  should  consist  of  a  Chief  Justice  and 
five  Associate  Justices;  that  the  United  States,  for  judicial  purposes,  should 
be  divided  into  thirteen  districts,  with  a  district  court  in  each,  and  three 
circuits  for  these  districts;  that  the  district  and  circuit  courts  should  have 
original  jurisdiction  in  some  cases  and  concurrent  jurisdiction  in  others  with 
the  courts  of  the  States;  that  the  Supreme  Court  should  exercise  the 
original  jurisdiction  in  the  cases  mentioned  in  the  Constitution.  The  act 
also  defined  and  regulated  appeals  from  the  Federal  and  State  courts  to  the 
Supreme  Court  of  the  Union  and  of  the  States.  This  remarkable  statute 
was  drafted  by  a  committee  of  the  Senate  consisting  of  eight  members,  of 

1 12  Peters,  718-20. 


EXTENT    AND    EXERCISE   OF   JUDICIAL    POWER  403 

whom  five, — including  its  chairman,  Oliver  Ellsworth,  later  to  be  Chief 
Justice, — had  been  members  of  the  Federal  Convention.  Section  13  of  the 
act,  for  which  Mr.  Ellsworth  is  deemed  to  have  been  chiefly  responsible, 
provided : 

That  the  Supreme  Court  shall  have  exclusive  jurisdiction  of  all  contro- 
versies of  a  civil  nature,  where  a  state  is  a  party,  except  between  a  state 
and  its  citizens ;  and  except  also  between  a  state  and  citizens  of  other  states, 
or  aliens,  in  which  latter  case  it  shall  have  original  but  not  exclusive  juris- 
diction. And  shall  have  exclusively  all  such  jurisdiction  of  suits  or  pro- 
ceedings against  ambassadors,  or  other  public  ministers,  or  their  domestics, 
or  domestic  servants,  as  a  court  of  law  can  have  or  exercise  consistently 
with  the  law  of  nations ;  and  original,  but  not  exclusive  jurisdiction  of  all 
suits  brought  by  ambassadors,  or  other  public  ministers,  or  in  which  a 
consul,  or  vice  consul,  shall  be  a  party.  .  .  .  The  Supreme  Court  shall 
also  have  appellate  jurisdiction  from  the  circuit  courts  and  courts  of  the 
several  states,  in  the  cases  herein  after  specially  provided  for;  and  shall 
have  power  to  issue  writs  of  prohibition  to  the  district  courts,  when  pro- 
ceeding as  courts  of  admiralty  and  maritime  jurisdiction,  and  writs  of 
mandamus,  in  cases  warranted  by  the  principles  and  usages  of  law,  to  any 
courts  appointed,  or  persons  holding  office,  under  the  authority  of  the 
United  States.1 

Passing  over  the  method  of  appeal  from  the  district  to  the  circuit,  and  from 
the  circuit  courts  to  the  Supreme  Court,  Section  25  of  the  act  deals  with 
appeals  from  the  courts  of  the  several  States,  enacting: 

That  a  final  judgment  or  decree  in  any  suit,  in  the  highest  court  of  law 
or  equity  of  a  State  in  which  a  decision  in  the  suit  could  be  had,  where  is 
drawn  in  question  the  validity  of  a  treaty  or  statute  of,  or  an  authority 
exercised  under  the  United  States,  and  the  decision  is  against  their  validity; 
or  where  is  drawn  in  question  the  validity  of  a  statute  of,  or  an  authority 
exercised  under  any  State,  on  the  ground  of  their  being  repugnant  to  the 
constitution,  treaties  or  laws  of  the  United  States,  and  the  decision  is  in 
favour  of  such  their  validity,  or  where  is  drawn  in  question  the  construc- 
tion of  any  clause  of  the  constitution,  or  of  a  treaty,  or  statute  of,  or  com- 
mission held  under  the  United  States,  and  the  decision  is  against  the  title, 
right,  privilege  or  exemption  specially  set  up  or  claimed  by  either  party, 
under  such  clause  of  the  said  Constitution,  treaty,  statute  or  commission, 
may  be  re-examined  and  reversed  or  affirmed  in  the  Supreme  Court  of 
the  United  States  upon  a  writ  of  error,  the  citation  being  signed  by  the 
chief  justice,  or  judge  or  chancellor  of  the  court  rendering  or  passing  the 
judgment  or  decree  complained  of,  or  by  a  justice  of  the  Supreme  Court 
of  the  United  States,  in  the  same  manner  and  under  the  same  regulations, 
and  the  writ  shall  have  the  same  effect,  as  if  the  judgment  or  decree  com- 
plained of  had  been  rendered  or  passed  in  a  circuit  court,  and  the  proceed- 
ing upon  the  reversal  shall  also  be  the  same,  except  that  the  Supreme 
Court,  instead  of  remanding  the  cause  for  a  final  decision  as  before  pro- 
vided, may  at  their  discretion,  if  the  cause  shall  have  been  once  remanded 
before,  proceed  to  a  final  decision  of  the  same,  and  award  execution.     But 

'  1  Statutes  at  Large,  80-1. 


404        THE  united  states:  a  study  in  international  organization 

no  other  error  shall  be  assigned  or  regarded  as  a  ground  of  reversal  in 
any  such  case  as  aforesaid,  than  such  as  appears  on  the  face  of  the  record, 
and  immediately  respects  the  before  mentioned  questions  of  validity  or 
construction  of  the  said  constitution,  treaties,  statutes,  commissions,  or 
authorities  in  dispute.1 

Without  dwelling  at  this  time  upon  the  provisions  of  these  sections  of 
the  judiciary  act,  as  it  is  called,  it  will  be  observed  that,  as  far  as  the  judi- 
cial power  of  the  United  States  is  concerned,  a  decision  of  a  State  court  is 
not  subject  to  reexamination  in  the  Supreme  Court  of  the  United  States 
unless  the  judgment  or  decree  is  contrary  to  the  Constitution,  treaty  or 
law  of  the  United  States;  but  it  should  also  be  observed  that  this  section 
enabled  the  State  court  to  decide  the  question  involved  in  favor  of  the  Con- 
stitution, treaty  or  law  of  the  United  States,  although  a  Federal  court  might 
be  of  a  different  opinion  if  the  case  were  presented  to  it.  To  prevent  this, 
and  to  enable  the  Federal  courts  to  pass  upon  a  question  involving  the  Con- 
stitution, treaties  or  laws  of  the  United  States,  whether  the  decision  of  the 
State  court  was  in  favor  or  against  the  Constitution,  treaty  or  law  of  the 
United  States,  it  was  enacted  by  the  Congress,  approved  December  23, 
1914,  that: 

"  It  shall  he  competent  for  the  Supreme  Court  to  require,  by  certiorari 
or  otherwise,  any  such  case  to  be  certified  to  the  Supreme  Court  for  its 
review  and  determination,  with  the  same  power  and  authority  in  the  case 
as  if  it  had  been  carried  by  an  appeal  or  writ  of  error  to  the  Supreme 
Court,  although  the  decision  in  such  case  may  have  been  in  favor  of  the 
validity  of  the  treaty  or  statute  or  authority  exercised  under  the  United 
States  or  may  have  been  against  the  validity  of  the  State  statute  or 
authority  claimed  to  be  repugnant  to  the  Constitution,  treaties,  or  laws  of 
the  United  States,  or  in  favor  of  the  title,  right,  privilege,  or  immunity 
claimed  under  the  Constitution,  treaty,  statute,  commission,  or  authority  of 
the  United  States."2 

As  in  the  nature  of  judicial  power,  so  in  the  matter  of  its  extent,  the 
decisions  of  the  Supreme  Court  of  the  United  States  are  the  best,  and  in 
this  instance  the  ultimate,  authority  to  which  to  resort;  and  because  of  this, 
several  leading  decisions  of  this  tribunal  will  be  considered  in  turn  and 
somewhat  at  length. 

In  Martin  v.  Hunter  (1  Wheaton,  304),  decided  in  1816,  the  Supreme 
Court  had  occasion  to  consider  the  nature  and  extent  of  the  appellate  power 
of  the  United  States  in  its  relation  to  the  "  final  judgment  or  decree  in  any 
suit  in  the  highest  court  of  law  or  equity  of  a  state."     In  this  instance  the 

1  1   Statutes  at  Large,  85-7. 
*38  Statutes  at  Large,  790. 


EXTENT   AND    EXERCISE   OF    JUDICIAL   POWER  405 

Court  of  Appeals   of   Virginia,   which,   on   a  mandate    from   the   Supreme 
Court  of  the  United  States,  rendered  its  judgment  in  the  following  terms: 

The  court  is  unanimously  of  opinion  that  the  appellate  power  of  the 
supreme  court  of  the  United  States  does  not  extend  to  this  court  under  a 
sound  construction  of  the  constitution  of  the  United  States;  that  so  much 
of  the  25th  section  of  the  act  of  congress,  to  establish  the  judicial  courts 
of  the  United  States,  as  extends  the  appellate  jurisdiction  of  the  supreme 
court  to  this  court,  is  not  in  pursuance  of  the  constitution  of  the  United 
States.  That  the  writ  of  error  in  this  cause  was  improvidently  allowed 
under  the  authority  of  that  act ;  that  the  proceedings  thereon  in  the  supreme 
court  were  coram  non  judice,  in  relation  to  this  court,  and  that  obedience 
to  its  mandate  be  declined  by  the  court.1 

The  question,  therefore,  presented  by  this  case,  was,  stripped  of  techni- 
calities, whether,  under  the  Constitution,  the  Supreme  Court  could  properly 
subject  the  decision  of  the  highest  State  court  to  a  re-examination  and,  in 
an  appropriate  case,  reverse  that  judgment  or  decree.  In  other  words, 
whether  the  Supreme  Court  of  the  United  States  or  the  court  of  final  resort 
of  one  of  the  States  was  to  interpret  the  Constitution  of  the  United  States; 
or,  narrowing  the  issue,  whether  the  nature  and  extent  of  the  judicial  power  "Nature  and 
of  the  United  States  were  to  be  determined  by  the  court  of  all  the  States  Determined 
or  by  the  court  of  any  one  of  them.  As  was  stated  by  Mr.  Justice  Baldwin, 
in  the  leading  case  of  Rhode  Island  v.  Massachusetts  (12  Peters,  657,  722), 
decided  in  1838,  "the  power  of  congress  to  make  this  provision  for  carry- 
ing into  execution  the  judicial  power  .  .  . ,  taken  in  connection  with  the 
constitution,  presents  the  great  question  in  this  cause,  which  is  one  of  con- 
struction appropriate  to  judicial  power,  and  exclusively  of  judicial  cog- 
nizance, till  the  legislative  power  acts  again  upon  it." 

In  the  case  of  Martin  v.  Hunter,  under  consideration,  Mr.  Justice  Story, 
recently  appointed  to  the  bench,  delivered  the  opinion  of  the  court,  which 
has  stood  the  test  of  criticism  and  re-examination.  After  explaining  the 
nature  of  the  more  perfect  Union  of  the  States  and  of  the  two  sovereignties 
created  by  the  Constitution,  and  having  quoted  and  analyzed  the  section  of 
the  Constitution  dealing  with  judicial  power,  he  continues,  saying: 

The  next  consideration  is  as  to  the  courts  in  which  the  judicial  power 
shall  be  vested.  It  is  manifest  that  a  supreme  court  must  be  established; 
but  whether  it  be  equally  obligatory  to  establish  inferior  courts,  is  a  ques- 
tion of  some  difficulty.  If  congress  may  lawfully  omit  to  establish  inferior 
courts,  it  might  follow,  that  in  some  of  the  enumerated  cases  the  judicial 
power  could  nowhere  exist.  The  supreme  court  can  have  original  juris- 
diction in  two  classes  of  cases  only,  viz.  in  cases  affecting  ambassadors, 
other  public  ministers  and  consuls,  and  in  cases  in  which  a  state  is  a  party. 
Congress  cannot   vest  any  portion  of   the   judicial  power  of   the   United 

1 1  Wheaton,  305-6. 


406  THE   UNITED   STATES:   A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

States,  except  in  courts  ordained  and  established  by  itself ;  and  if  in  any 
of  the  cases  enumerated  in  the  constitution,  the  state  courts  did  not  then 
possess  jurisdiction,  the  appellate  jurisdiction  of  the  supreme  court  (admit- 
ting that  it  could  act  on  state  courts)  could  not  reach  those  cases,  and  con- 
sequently, the  injunction  of  the  constitution,  that  the  judicial  power  "shall 
be  vested,"  would  be  disobeyed.  It  would  seem,  therefore,  to  follow,  that 
congress  are  bound  to  create  some  inferior  courts,  in  which  to  vest  all  that 
jurisdiction  which,  under  the  constitution,  is  exclusively  vested  in  the  United 
States,  and  of  which  the  supreme  court  cannot  take  original  cognisance. 
They  might  establish  one  or  more  inferior  courts;  they  might  parcel  out 
the  jurisdiction  among  such  courts,  from  time  to  time,  at  their  own 
pleasure.  But  the  whole  judicial  power  of  the  United  States  should  be, 
at  all  times,  vested  either  in  an  original  or  appellate  form,  in  some  courts 
created  under  its  authority.1 

After  reenforcing  the  view  which  he  had  just  expressed  by  an  attentive 
examination  of  the  second  section  of  the  third  article,  he  thus  states  a  fur- 
ther question,  which  naturally  presented  itself : 

It  being,  then,  established  that  the  language  of  this  clause  is  imperative, 
the  next  question  is  as  the  cases  to  which  it  shall  apply.  The  answer  is 
found  in  the  constitution  itself.  The  judicial  power  shall  extend  to  all  the 
cases  enumerated  in  the  constitution.  As  the  mode  is  not  limited,  it  may 
extend  to  all  such  cases,  in  any  form,  in  which  judicial  power  may  be 
exercised.  It  may,  therefore,  extend  to  them  in  the  shape  of  original  or 
appellate  jurisdiction,  or  both ;  for  there  is  nothing  in  the  nature  of  the 
cases  which  binds  to  the  exercise  of  the  one  in  preference  to  the  other.2 

The  learned  justice  next  asks  the  question,  "In  what  cases  (if  any)  is  this 
judicial  power  exclusive,  or  exclusive  at  the  election  of  congress  "  and,  in 
regard  to  the  States,  he  says : 

At  all  events,  whether  the  one  construction  or  the  other  prevail,  it  <s 
manifest  that  the  judicial  power  of  the  United  States  is  unavoidably,  in 
some  cases,  exclusive  of  all  state  authority,  and  in  all  others,  may  be  made 
so  at  the  election  of  congress.  No  part  of  the  criminal  jurisdiction  of  the 
United  States  can,  consistently  with  the  constitution,  be  delegated  to  state 
tribunals.  The  admiralty  and  maritime  jurisdiction  is  of  the  same  exclu- 
sive cognisance ;  and  it  can  only  be  in  those  cases  where,  previous  to  the 
constitution,  state  tribunals  possessed  jurisdiction  independent  of  national 
authority,  that  they  can  now  constitutionally  exercise  a  concurrent  jurisdic- 
tion. Congress,  throughout  the  judicial  act,  and  particularly  in  the  9th,  11th, 
and  13th  sections,  have  legislated  upon  the  supposition  that  in  all  the  cases 
to  which  the  judicial  powers  of  the  United  States  extended,  they  might 
rightfully  vest  exclusive  jurisdiction  in  their  own  courts.3 

After  stating  that  the  original  jurisdiction  of   the   Supreme  Court  is 

1 1  Wheaton,  330-1. 
'  Ibid.,  333. 
'  Ibid.,  336-7. 


EXTENT    AND    EXERCISE   OF   JUDICIAL    POWER  407 

limited,  but  that  there  are  no  terms  of  limitation  upon  the  jurisdiction  which 
it  may  assume  upon  appeal,  in  so  far  as  the  Constitution,  the  treaties  and 
the  laws  of  the  United  States  are  concerned,  Mr.  Justice  Story  comes  to  the 
specific  question  before  him  for  decision.     Thus: 

As,  then,  by  the  terms  of  the  constitution,  the  appellate  jurisdiction  is 
not  limited  as  to  the  supreme  court,  and  as  to  this  court  it  may  be  exercised 
in  all  other  cases  than  those  of  which  it  has  original  cognisance,  what  is 
there  to  restrain  its  exercise  over  state  tribunals,  in  the  enumerated  cases  ? x 

And  to  this  question  he  gives  the  following  conclusive  answer : 

The  appellate  power  is  not  limited  by  the  terms  of  the  third  article  to 
any  particular  courts.  The  words  are,  "the  judicial  power  (which  includes 
appellate  power)  shall  extend  to  all  cases,"  &c,  and  "  in  all  other  cases 
before  mentioned  the  supreme  court  shall  have  appellate  jurisdiction."  It 
is  the  case,  then,  and  not  the  court,  that  gives  the  jurisdiction.  If  the  judi- 
cial power  extends  to  the  case,  it  will  be  in  vain  to  search  in  the  letter  of 
the  constitution  for  any  qualification  as  to  the  tribunal  where  it  depends.2 

Examining  this  phase  of  the  case  more  closely,  he  continued : 

On  the  other  hand,  if,  as  has  been  contended,  a  discretion  be  vested  in 
congress  to  establish,  or  not  to  establish,  inferior  courts  at  their  own 
pleasure,  and  congress  should  not  establish  such  courts,  the  appellate  juris- 
diction of  the  supreme  court  would  have  nothing  to  act  upon,  unless  it 
could  act  upon  cases  pending  in  the  state  courts.  Under  such  circumstances 
it  must  be  held  that  the  appellate  power  would  extend  to  state  courts ;  for 
the  constitution  is  peremptory  that  it  shall  extend  to  certain  enumerated 
cases,  which  cases  could  exist  in  no  other  courts.3 

There  was,  however,  an  argument  stronger  than  that  based  upon  the 
reason  of  the  thing,  which  Mr.  Justice  Story  thus  states  in  the  very  next 
paragraph  of  his  opinion: 

But  it  is  plain  that  the  framers  of  the  constitution  did  contemplate  that 
cases  within  the  judicial  cognizance  of  the  United  States  not  only  might 
but  would  arise  in  the  state  courts,  in  the  exercise  of  their  ordinary  juris- 
diction. With  this  view  the  sixth  article  declares,  that  "  this  constitution, 
and  the  laws  of  the  United  States  which  shall  be  made  in  pursuance  thereof, 
and  all  treaties  made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land,  and  the  judges  in 
every  state  shall  be  bound  thereby,  any  thing  in  the  constitution  or  laws  of 
any  state  to  the  contrary  notwithstanding."  It  is  obvious  that  this  obliga- 
tion is  imperative  upon  the  state  judges  in  their  official,  and  not  merely  in 
their  private,  capacities.  From  the  very  nature  of  their  judicial  duties  they 
would  be  called  upon  to  pronounce  the  law  applicable  to  the  case  in  judg- 

1  Ibid.,  338. 

2  Ibid. 

"  Ibid.,  339-40. 


408  THE    UNITED    STATES:   A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

ment.  They  were  not  to  decide  merely  according  to  the  laws  or  constitu- 
tion of  the  state,  but  according  to  the  constitution,  laws  and  treaties  of  the 
United  States — "  the  supreme  law  of  the  land." 

With  this  statement  of  the  language  of  the  judicial  section  and  of  the 
obligation  imposed  by  the  sixth  article  of  the  Constitution,  Mr.  Justice 
Story  might  have  concluded  this  portion  of  his  opinion,  but  he  was  unwill- 
ing to  overlook  two  further  reasons,  which  then,  and  now,  after  the  experi- 
ence of  a  century,  are  of  importance. 

As  to  the  first  reason  [to  quote  Mr.  Justice  Story's  language] — admitting 
that  the  judges  of  the  state  courts  are,  and  always  will  be,  of  as  much 
learning,  integrity,  and  wisdom,  as  those  of  the  courts  of  the  United  States, 
(which  we  very  cheerfully  admit)  it  does  not  aid  the  argument.  It  is 
manifest  that  the  constitution  has  proceeded  upon  a  theory  of  its  own,  and 
given  or  withheld  powers  according  to  the  judgment  of  the  American  people, 
by  whom  it  was  adopted.  We  can  only  construe  its  powers,  and  cannot 
inquire  into  the  policy  or  principles  which  induced  the  grant  of  them.  The 
constitution  has  presumed  (whether  rightly  or  wrongly  we  do  not  inquire), 
that  state  attachments,  state  prejudices,  state  jealousies,  and  state  interests, 
might  sometimes  obstruct,  or  control,  or  be  supposed  to  obstruct,  or  con- 
trol, the  regular  administration  of  justice.  Hence,  in  controversies  between 
states;  between  citizens  of  different  states;  between  citizens  claiming  grants 
under  different  states ;  between  a  state  and  its  citizens,  or  foreigners,  and 
between  citizens  and  foreigners,  it  enables  the  parties,  under  the  authority 
of  congress,  to  have  the  controversies  heard,  tried,  and  determined  before 
the  national  tribunals.  No  other  reason  than  that  which  has  been  stated 
can  be  assigned,  why  some,  at  least,  of  those  cases  should  not  have  been 
left  to  the  cognizance  of  the  state  courts.  In  respect  to  the  other  enumerated 
cases — the  cases  arising  under  the  constitution,  laws,  and  treaties  of  the 
United  States,  cases  affecting  ambassadors  and  other  public  ministers,  and 
cases  of  admiralty  and  maritime  jurisdiction — reasons  of  a  higher  and 
more  extensive  nature,  touching  the  safety,  peace,  and  sovereignty  of  the 
nation,  might  well  justify  a  grant  of  exclusive  jurisdiction.1 

So  much  for  the  first  reason;  as  to  the  second,  Mr.  Justice  Story  said: 

A  motive  of  another  kind,  perfectly  compatible  with  the  most  sincere 
respect  for  state  tribunals,  might  induce  the  grant  of  appellate  power  over 
their  decisions.  That  motive  is  the  importance,  and  even  necessity  of 
uniformity  of  decisions  throughout  the  whole  United  States,  upon  all  sub- 
jects within  the  purview  of  the  constitution.  Judges  of  equal  learning  and 
integrity,  in  different  states,  might  differently  interpret  a  statute,  or  a  treaty 
of  the  United  States,  or  even  the  constitution  itself:  If  there  were  no  revis- 
ing authority  to  control  these  jarring  and  discordant  judgments,  and  har- 
monize them  into  uniformity,  the  laws,  the  treaties,  and  the  constitution  of 
the  United  States  would  be  different  in  different  states,  and  might,  per- 
haps, never  have  precisely  the  same  construction,  obligation,  or  efficacy,  in 
any  two  states.     The  public  mischiefs  that  would  attend  such  a  state  of 

M  Wheaton,  346-7. 


EXTENT   AND   EXERCISE   OF   JUDICIAL    POWER  409 

things  would  be  truly  deplorable ;  and  it  cannot  be  believed  that  they  could 
have  escaped  the  enlightened  convention  which  formed  the  constitution. 
What,  indeed,  might  then  have  been  only  prophecy,  has  now  become  fact; 
and  the  appellate  jurisdiction  must  continue  to  be  the  only  adequate  remedy 
for  such  evils.1 

In  Cohens  v.  Virginia  (6  Wheaton,  264),  decided  in  1821,  the  same 
general  question  arose  in  a  different  way  and  was  argued  differently,  but 
decided  in  accordance  with  the  principle  of  Martin  v.  Hunter,  although  the 
ratio  decidendi  of  the  Cohens  case  differed  from  that  of  Martin  v.  Hunter 
in  that  Mr.  Chief  Justice  Marshall  instead  of  Mr.  Justice  Story  delivered 
the  opinion. 

There  was  a  statute  of  the  State  of  Virginia  forbidding  the  sale  of  lot- 
tery tickets  within  the  State.  There  was  an  act  of  Congress  of  May  4, 
1812,  permitting  the  drawing  of  lotteries  within  the  District  of  Columbia; 
and  the  question  was,  whether  this  act  of  Congress  could  be  pleaded  as  a 
defense  to  the  law  of  Virginia  forbidding  the  sale  of  lottery  tickets  within 
the  State.  From  the  judgment  of  the  highest  court  of  the  State  having 
jurisdiction  of  the  cause  of  action,  the  case  was  removed,  by  writ  of  error, 
to  the  Supreme  Court  of  the  United  States,  where  counsel  for  defendant 
moved  to  dismiss  the  writ  for  want  of  jurisdiction,  upon  the  ground  that 
a  State  was  a  defendant,  that  a  writ  of  error  does  not  lie  from  the  Supreme 
Court  of  the  United  States  to  a  State  court,  and  that  the  Supreme  Court 
had  no  jurisdiction  of  the  case  because  the  judgment  violated  neither  the 
Constitution  nor  any  law  of  the  United  States. 

On  the  important  question  as  stated,  Mr.  Chief  Justice  Marshall  said, 
in  delivering  the  unanimous  opinion  of  the  court : 

The  questions  presented  to  the  Court  by  the  first  two  points  made  at 
the  bar  are  of  great  magnitude,  and  may  be  truly  said  vitally  to  affect  the 
Union.  They  exclude  the  inquiry  whether  the  constitution  and  laws  of  the 
United  States  have  been  violated  by  the  judgment  which  the  plaintiffs  in 
error  seek  to  review ;  and  maintain  that,  admitting  such  violation,  it  is  not 
in  the  power  of  the  government  to  apply  a  corrective.  They  maintain  that 
the  nation  does  not  possess  a  department  capable  of  restraining  peaceably, 
and  by  authority  of  law,  any  attempts  which  may  be  made,  by  any  part, 
against  the  legitimate  powers  of  the  whole;  and  that  the  government  is 
reduced  to  the  alternative  of  submitting  to  such  attempts,  or  of  resisting 
them  by  force.  They  maintain  that  the  constitution  of  the  United  States 
has  provided  no  tribunal  for  the  final  construction  of  itself,  or  of  the  laws 
or  treaties  of  the  nation ;  but  that  this  power  may  be  exercised  in  the  last 
resort  by  the  Courts  of  every  State  in  the  Union.  That  the  constitution, 
laws,  and  treaties,  may  receive  as  many  constructions  as  there  are  States; 
and  that  this  is  not  a  mischief,  or,  if  a  mischief,  is  irremediable.2 

1  Ibid..  347-8. 

'  6  Wheaton,  376-7. 


410  THE    UNITED   STATES:   A   STUDY    IN    INTERNATIONAL  ORGANIZATION 

After  this  statement,  the  Chief  Justice  proceeded  to  discuss  the  question 
in  which  the  case  before  him  was  to  be  distinguished  in  form,  though  not 
in  substance,  from  that  of  Martin  v.  Hunter,  and  the  conclusion  which  he 
reached  on  this  first  point  is  deeply  imbedded  in  the  jurisprudence  of  the 
United  States,  and  is  hardly  less  familiar  than  the  language  of  the  Consti- 
tution, which  it  interprets. 

After  saying  that  "jurisdiction  is  given  to  the  Courts  of  the  Union  in 
two  classes  of  cases,"  he  thus  enumerates  them : 


In  the  first,  their  jurisdiction  depends  on  the  character  of  the  cause, 
whoever  may  be  the  parties.  This  class  comprehends  "  all  cases  in  law 
and  equity  arising  under  this  constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority  "  This 
clause  extends  the  jurisdiction  of  the  Court  to  all  the  cases  described,  with- 
out making  in  its  terms  any  exception  whatever,  and  without  any  regard 
to  the  condition  of  the  party.  If  there  be  any  exception,  it  is  to  be  implied 
against  the  express  words  of  the  article. 

In  the  second  class,  the  jurisdiction  depends  entirely  on  the  character 
of  the  parties.     In  this  are  comprehended  "  controversies  between  two  or 
Liability  more  States,  between  a  State  and  citizens  of  another  State,"  and  "  between 

of  States  a  State  and  foreign  States,  citizens  or  subjects."     If  these  be  the  parties, 

it  is  entirely  unimportant  what  may  be  the  subject  of  controversy.  Be  it 
what  it  may,  these  parties  have  a  constitutional  right  to  come  into  the 
Courts  of  the  Union.1 

To  break  the  force  of  this  statement,  counsel  for  defendant  in  error  con- 
tended "  that  a  sovereign,  independent  State  is  not  suable  except  by  its  own 
consent."  Upon  which  statement,  the  Chief  Justice  made  the  following 
comment : 

This  general  proposition  will  not  be  controverted.  But  its  consent  is 
not  requisite  in  each  particular  case.  It  may  be  given  in  a  general  law.  And 
if  a  state  has  surrendered  any  portion  of  its  sovereignty,  the  question 
whether  a  liability  to  suit  be  a  part  of  this  portion,  depends  on  the  instru- 
ment by  which  the  surrender  is  made.  If,  upon  a  just  construction  of  that 
instrument,  it  shall  appear  that  the  State  has  submitted  to  be  sued,  then  it 
has  parted  with  the  sovereign  right  of  judging  in  every  case  on  the  justice 
of  its  own  pretentions,  and  has  entrusted  that  power  to  a  tribunal  in  whose 
impartiality  it  confides.2 

After  quoting  the  express  provision  of  the  Constitution,  extending  the 
judicial  power  to  controversies  between  two  or  more  States,  between  citizens 
of  a  State  and  another  State,  and  between  citizens  of  a  foreign  State, 
citizens  or  subjects,  the  Chief  Justice  concludes  that  "  the  mere  circumstance 
that  a  State  is  a  party  gives  jurisdiction  to  the  court,"  and  that  "  the  Con- 

'  6  Wheaton,  378. 
•  Ibid.,  380. 


EXTENT   AND    EXERCISE   OF   JUDICIAL    POWER  411 

stitution  gave  to  every  person  having  a  claim  upon  a  State  a  right  to  sub- 
mit his  case  to  the  Court  of  the  nation."  To  show  the  importance  of  having 
a  case,  even  although  a  State  be  a  party,  passed  upon  by  the  Supreme  Court 
when  the  Constitution,  treaties  or  laws  of  the  United  States  be  drawn  in 
question,  and  the  decision  opposed  to  the  supreme  law  of  the  land,  the  Chief 
Justice  thus  reenforces  the  reasons  already  advanced  by  Mr.  Justice  Story, 
saying : 

What  power  of  the  government  could  be  executed  by  its  own  means, 
in  any  State  disposed  to  resist  its  execution  by  a  course  of  legislation?  The 
laws  must  be  executed  by  individuals  acting  within  the  several  States.  If 
these  individuals  may  be  exposed  to  penalties,  and  if  the  Courts  of  the 
Union  cannot  correct  the  judgments  by  which  these  penalties  may  be 
enforced,  the  course  of  the  government  may  be,  at  any  time,  arrested  by 
the  will  of  one  of  its  members.  Each  member  will  possess  a  veto  on  the 
will  of  the  whole.1 

And  again: 

Different  States  may  entertain  different  opinions  on  the  true  construc- 
tion of  the  constitutional  powers  of  Congress.  We  know,  that  at  one  time, 
the  assumption  of  the  debts  contracted  by  the  several  States,  during  the 
war  of  our  revolution,  was  deemed  unconstitutional  by  some  of  them.  We 
know,  too,  that  at  other  times,  certain  taxes,  imposed  by  Congress,  have 
been  pronounced  unconstitutional.  Other  laws  have  been  questioned  par- 
tially, while  they  were  supported  by  the  great  majority  of  the  American 
people.  We  have  no  assurance  that  we  shall  be  less  divided  than  we  have 
been.  States  may  legislate  in  conformity  to  their  opinions,  and  may  enforce 
those  opinions  by  penalties.  It  would  be  hazarding  too  much  to  assert,  that 
the  judicatures  of  the  States  will  be  exempt  from  the  prejudices  by  which 
the  legislatures  and  people  are  influenced,  and  will  constitute  perfectly 
impartial  tribunals  In  many  States  the  judges  are  dependent  for  office  and 
for  salary  on  the  will  of  the  legislature.  The  constitution  of  the  United 
States  furnishes  no  security  against  the  universal  adoption  of  this  prin- 
ciple. When  we  observe  the  importance  which  that  constitution  attaches 
to  the  independence  of  judges,  we  are  the  less  inclined  to  suppose  that  it 
can  have  intended  to  leave  these  constitutional  questions  to  tribunals  where 
this  independence  may  not  exist,  in  all  cases  where  a  State  shall  prosecute 
an  individual  who  claims  the  protection  of  an  act  of  Congress.2 

Taking  up  another  phase  of  the  question  involved  in  the  contention,  the 
Chief  Justice  said : 

It  has  been  also  urged,  as  an  additional  objection  to  the  jurisdiction  of 
the  Court,  that  cases  between  a  State  and  one  of  its  own  citizens,  do  not 
come  within  the  general  scope  of  the  constitution ;  and  were  obviously 
never  intended  to  be  made  cognizable  in  the  federal  Courts.   .    .    . 

1  Ibid.,  385. 
'  Ibid..  386-7. 


412  THE   UNITED   STATES:   A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

This  is  very  true,  so  far  as  the  jurisdiction  depends  on  the  character  of 
the  parties ;  and  the  argument  would  have  great  force  if  urged  to  prove  that 
this  Court  could  not  establish  the  demand  of  a  citizen  upon  his  State,  but 
is  not  entitled  to  the  same  force  when  urged  to  prove  that  this  Court  cannot 
inquire  whether  the  constitution  or  laws  of  the  United  States  protect  a 
citizen  from  a  prosecution  instituted  against  him  by  a  State.  If  jurisdic- 
tion depended  entirely  on  the  character  of  the  parties,  and  was  not  given 
where  the  parties  have  not  an  original  right  to  come  into  Court,  that  part 
of  the  2d  section  of  the  3d  article,  which  extends  the  judicial  power  to  all 
cases  arising  under  the  constitution  and  laws  of  the  United  States,  would 
be  mere  surplusage.  It  is  to  give  jurisdiction  where  the  character  of  the 
parties  would  not  give  it,  that  this  very  important  part  of  the  clause  was 
inserted  ...  If  the  constitution  or  laws  may  be  violated  by  proceedings 
instituted  by  a  State  against  its  own  citizens,  and  if  that  violation  may  be 
such  as  essentially  to  affect  the  constitution  and  the  laws,  such  as  to  arrest 
the  progress  of  government  in  its  constitutional  course,  why  should  these 
cases  be  excepted  from  that  provision  which  expressly  extends  the  judicial 
power  of  the  Union  to  all  cases  arising  under  the  constitution  and  laws?1 

To  this  question,  thus  put,  no  satisfactory  answer  has  as  yet  been  made. 

In   some   respects   the  case  of   O shorn  v.   Bank   of  the    United  States 

(9  Wheaton,  737),  decided  in  1824,  is  to  be  considered  as  an  appeal  from 

the  decision  of  the  Supreme  Court  in  the  case  of  McCulloch  v.  Maryland 

How  cases  (4  Wheaton,  316),  decided  five  years  earlier,  holding  that  a  State  law  tax- 

May  Arise  v  "  J 

in  Law  and  nior  a  branch  of  the  bank  of  the  United  States  in  that  State  is  a  tax  upon 

Equity  &  ,  r 

an  agency  of  the  United  States  and  is  unconstitutional,  null  and  void.  The 
decision  in  the  McCulloch  case  was  re-examined  and  affirmed.  In  addition, 
the  court  held  that  a  suit  against  officers  of  a  State,  enjoining  them  from 
proceeding  against  the  bank,  was  not  a  suit  against  the  State  in  the  sense 
of  the  11th  Amendment,  unless  the  State  itself  were  a  party  to  the  record. 
While,  however,  the  Osborn  case  is  an  authority  for  these  views,  for  pres- 
ent purposes  it  is  cited  to  show  when  and  how  a  case  arises  in  law  and  equity 
under  the  Constitution,  treaties  and  laws  of  the  United  States. 

Counsel  for  the  defendants  had  insisted  that  it  was  not  such  a  case; 
counsel  for  the  plaintiff  that  it  was;  and,  meeting  the  issue  as  presented,  the 
court  examined  the  question  and  rejected  the  defendant's  thesis.  Speaking 
for  the  court,  Mr.  Chief  Justice  Marshall  said: 

The  appellants  contend,  that  it  does  not,  because  several  questions  may 
arise  in  it,  which  depend  on  the  general  principles  of  the  law,  not  on  any 
act  of  Congress. 

If  this  were  sufficient  to  withdraw  a  case  from  the  jurisdiction  of  the 
federal  Courts,  almost  every  case,  although  involving  the  construction  of  a 
law,  would  be  withdrawn;  and  a  clause  in  the  constitution,  relating  to  a 
subject  of  vital  importance  to  the  government,  and  expressed  in  the  most 
comprehensive  terms,  would  be  construed  to  mean  almost  nothing.2 

1  6  Wheaton,  390-2. 
:  9  Wheaton,  819-20. 


EXTENT   AND   EXERCISE   OF   JUDICIAL    POWER  413 

The  Chief  Justice  thereupon  asks  if  jurisdiction  is  excluded  because  the 
case  involves  questions  depending  on  general  principles,  and  holds  that  it 
is  not,  saying  and  declaring  the  law  on  this  point : 

A  cause  may  depend  on  several  questions  of  fact  and  law.  Some  of 
these  may  depend  on  the  construction  of  a  law  of  the  United  States ;  others 
on  principles  unconnected  with  that  law.  It  it  be  a  sufficient  foundation 
for  jurisdiction,  that  the  title  or  right  set  up  by  the  party,  may  be  defeated 
by  one  construction  of  the  constitution  or  law  of  the  United  States,  and 
sustained  by  the  opposite  construction,  provided  the  facts  necessary  to  sup- 
port the  action  be  made  out,  then  all  the  other  questions  must  be  decided 
as  incidental  to  this,  which  gives  that  jurisdiction.  Those  other  questions 
cannot  arrest  the  proceedings.  Under  this  construction,  the  judicial  power 
of  the  Union  extends  effectively  and  beneficially  to  that  most  important 
class  of  cases,  which  depend  on  the  character  of  the  cause.  On  the  oppo- 
site construction,  the  judicial  power  never  can  be  extended  to  a  whole  case, 
as  expressed  by  the  constitution,  but  to  those  parts  of  cases  only  which 
present  the  particular  question  involving  the  construction  of  the  constitu- 
tion or  the  law.  We  say  it  never  can  be  extended  to  the  whole  case, 
because,  if  the  circumstance  that  other  points  are  involved  in  it,  shall 
disable  Congress  from  authorizing  the  Courts  of  the  Union  to. take  juris- 
diction of  the  original  cause,  it  equally  disables  Congress  from  authorizing 
those  Courts  to  take  jurisdiction  of  the  whole  cause,  on  an  appeal,  and 
thus  will  be  restricted  to  a  single  question  in  that  cause ;  and  words  obvi- 
ously intended  to  secure  to  those  who  claim  rights  under  the  constitution, 
laws,  or  treaties  of  the  United  States,  a  trial  in  the  federal  Courts,  will  be 
restricted  to  the  insecure  remedy  of  an  appeal  upon  an  insulated  point, 
after  it  has  received  that  shape  which  may  be  given  to  it  by  another  tri- 
bunal, into  which  he  is  forced  against  his  will 

We  think,  then,  that  when  a  question  to  which  the  judicial  power  of  the 
Union  is  extended  by  the  constitution,  forms  an  ingredient  of  the  original 
cause,  it  is  in  the  power  of  Congress  to  give  the  Circuit  Courts  jurisdiction 
of  that  cause,  although  other  questions  of  fact  or  of  law  may  be  involved 
in  it.1 

It  requires  no  comment  to  show  the  necessity  of  such  a  decision,  as  other- 
wise the  purpose  of  the  Constitution  would  be  frustrated,  in  that  cases  in 
law  and  equity  arising  under  the  Constitution,  treaties  or  laws  of  the 
United  States  would  not  be  examined  by  the  Supreme  Court,  either 
originally  or  upon  appeal,  and  the  Government  of  the  States  would  be 
unable  to  defend  itself  in  many  cases  against  the  acts  of  the  States.  Such 
a  construction  would  not  extend  the  judicial  power  of  the  United  States 
but  would  withdraw  such  power  from  cases  in  law  and  equity  arising  under 
the  Constitution,  laws  and  treaties  of  the  United  States. 

The  question  frequently  arises  whether  the  judicial  power  of  the  United 

...  Is  Judicial 

States  is  concurrent  with  that  of  the  States;  or  whether  it  is,  in  its  nature,    Power 

Concurrent 

exclusive.     Advocates  of  a  highly  centralized  government  insist   that  the   or  Exclusive? 
1  Ibid.,  821-3. 


414  THE    UNITED   STATES:   A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

judicial  power  of  the  United  States  is  exclusive  wherever  it  attaches, 
whereas  advocates  of  the  States  insist  that  the  States  retained  the  right  to 
the  exercise  of  judicial  power  in  all  cases  where  it  has  not  been  renounced, 
or  where  the  Government  of  the  Union,  in  pursuance  of  the  Constitution, 
has  not  invested  the  judicial  power  exclusively  in  the  courts  of  the  Union. 
The  framers  of  the  Constitution,  its  classic  expounders,  the  Congress  and  the 
Supreme  Court,  seem  to  belong  to  the  latter  class.  As  far  as  the  framers 
of  the  Constitution  and  the  Congress  are  concerned,  it  is  only  necessary  to 
point  to  Section  9  of  the  judiciary  act  of  September  24,  1789,  which  rec- 
ognizes concurrent  jurisdiction  by  declaring,  among  other  things,  that  the 
district  courts  of  the  United  States  "  shall  also  have  cognizance,  concurrent 
with  the  courts  of  the  several  States,  or  the  circuit  courts,  as  the  case 
may  be,  of  all  causes  where  an  alien  sues  for  a  tort  only  in  violation  of  the 
law  of  nations  or  a  treaty  of  the  United  States."  1 

Members  of  the  committee  framing  this  act  had  been  members  of  the 
Federal  Convention.  The  hand  that  drew  it  was  Oliver  Ellsworth,  mem- 
ber of  the  Federal  Convention,  member  of  the  State  Convention  of  Con- 
necticut for  the  ratification  of  the  Constitution,  first  United  States  Senator 
from  his  State  under  the  Constitution,  and  soon  to  be  Chief  Justice  of  the 
Supreme  Court  of  the  United  States.  Alexander  Hamilton  was  no  friend 
of  the  States.  He  wished  to  blot  them  out  of  existence.  In  the  plan  of 
the  Constitution  which  he  proposed  to  the  Federal  Convention  they  would 
have  been  little  more  than  provinces,  with  governors  appointed  for  life  or 
during  good  behavior  with  a  veto  upon  the  laws  of  the  State,  and  appointed 
by  a  President  holding  office  for  life  or  during  good  behavior.  Yet  he 
admitted  freely,  in  The  Federalist,  that  the  States  under  the  Constitution 
were  to  be  considered  as  sovereign  bodies,  possessing  the  powers  which  they 
did  not  expressly  or  impliedly  grant  to  the  Government  of  the  Union,  or 
which  they  did  not  themselves  renounce.  In  the  82d  number  of  The  Fed- 
eralist he  speaks  of  the  Government  as  composed  of  distinct  sovereignties, 
and,  discussing  the  relation  of  the  State  to  the  Federal  judiciary,  he  asks : 
"  Is  this  to  be  exclusive  or  are  those  courts  to  possess  a  concurrent  juris- 
diction? If  the  latter,  in  what  relation  will  they  stand  to  the  national  tri- 
bunals?" These  inquiries,  which,  he  says,  "we  meet  with  in  the  mouths 
of  men  of  sense,"  he  thus  answers: 

The  principles  established  in  a  former  paper  teach  us,  that  the  states 
will  retain  all  pre-existing  authorities,  which  may  not  be  exclusively  dele- 
gated to  the  federal  head ;  and  that  this  exclusive  delegation  can  only  exist 
in  one  of  three  cases:  where  an  exclusive  authority  is,  in  express  terms, 
granted  to  the  union ;  or  where  a  particular  authority  is  granted   to  the 

1 1  Statutes  at  Large,  77. 


EXTENT    AND    EXERCISE   OF    JUDICIAL    POWER  415 

union,  and  the  exercise  of  a  like  authority  is  prohibited  to  the  states ;  or, 
where  an  authority  is  granted  to  the  union,  with  which  a  similar  authority 
in  the  states  would  be  utterly  incompatible.  Though  these  principles  may 
not  apply  with  the  same  force  to  the  judiciary,  as  to  the  legislative  power; 
yet  I  am  inclined  to  think,  that  they  are  in  the  main,  just  with  respect  to 
the  former,  as  well  as  the  latter.  And  under  this  impression  I  shall  lay  it 
down  as  a  rule,  that  the  state  courts  will  retain  the  jurisdiction  they  now 
have,  unless  it  appears  to  be  taken  away  in  one  of  the  enumerated  modes.1 

These  are  also  the  views  of  the  Supreme  Court,  and  indeed,  in  the  case 
of  ClafHin  v.  Houseman  (93  U.  S.,  130),  decided  in  1876,  Mr.  Justice 
Bradley,  speaking  for  a  unanimous  court,  refers  to  this  very  number  of  The 
Federalist  and  appears  to  approve  not  merely  the  view  which  has  been 
quoted,  but  Hamilton's  entire  conception  and  statement  of  the  concurrent 
powers  of  the  Federal  and  of  the  State  courts.  And  the  approval  of  the 
Supreme  Court  is  not  indirect,  but  express  and  direct,  in  that  it  thus  quotes 
and  approves  the  Hamiltonian  conception : 

It  was  fully  examined  in  the  eighty-second  number  of  "  The  Federalist," 
by  Alexander  Hamilton,  with  his  usual  analytical  power  and  far-seeing 
genius ;  and  hardly  an  argument  or  a  suggestion  has  been  made  since  which 
he  did  not  anticipate.  After  showing  that  exclusive  delegation  of  authority 
to  the  Federal  government  can  arise  only  in  one  of  three  ways, — either  by 
express  grant  of  exclusive  authority  over  a  particular  subject;  or_by  a 
simple  grant  of  authority,  with  a  subsequent  prohibition  thereof  to  the 
States ;  or,  lastly,  where  an  authority  granted  to  the  Union  would  be  utterly 
incompatible  with  a  similar  authority  in  the  States, — he  says,  that  these 
principles  may  also  apply  to  the  judiciary  as  well  as  the  legislative  power. 
Hence,  he  infers  that  the  State  courts  will  retain  the  jurisdiction  they  then 
had,  unless  taken  away  in  one  of  the  enumerated  modes.  But,  as  their 
previous  jurisdiction  could  not  by  possibility  extend  to  cases  which  might 
grow  out  of  and  be  peculiar  to  the  new  constitution,  he  considered  that, 
as  to  such  cases,  Congress  might  give  the  Federal  courts  sole  jurisdiction. 
"  I  hold,"  says  he,  "  that  the  State  courts  will  be  divested  of  no  part  of 
their  primitive  jurisdiction,  further  than  may  relate  to  an  appeal ;  and  I 
am  even  of  opinion,  that  in  every  case  in  which  they  were  not  expressly 
excluded  by  the  future  acts  of  the  national  legislature,  they  will,  of  course, 
take  cognizance  of  the  causes  to  which  those  acts  may  give  birth.  This  I 
infer  from  the  nature  of  judiciary  power,  and  from  the  general  genius  of 
the  system.  The  judiciary  power  of  every  government  looks  beyond  its 
own  local  or  municipal  laws,  and,  in  civil  cases,  lays  hold  of  all  subjects  of 
litigation  between  parties  within  its  jurisdiction,  though  the  causes  of  dis- 
pute are  relative  to  the  laws  of  the  most  distant  part  of  the  globe.  .  .  . 
When,  in  addition  to  this,  we  consider  the  State  governments  and  the 
national  government,  as  they  truly  are,  in  the  light  of  kindred  systems,  and 
as  parts  of  ONE  WHOLE,  the  inference  seems  to  be  conclusive,  that  the 
State  courts  would  have  concurrent  jurisdiction  in  all  cases  arising  under 
the  laws  of  the  Union,  where  it  was  not  expressly  prohibited."  2 

1  The  Federalist,  1802  ed.,  Vol.  II,  pp.  243-4. 

2  93  U.  S.  138. 


416  THE    UNITED    STATES:   A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

After  referring  to  the  passage  of  the  judiciary  act,  which  has  been  quoted, 
and  to  the  exact  language  of  the  Constitution,  Mr.  Justice  Bradley  next 
invokes  the  authority  of  the  great  Chief  Justice  himself.     Thus: 

In  Cohens  v.  Virginia,  6  Wheat.  415,  Chief  Justice  Marshall  demon- 
strates the  necessity  of  an  appellate  power  in  the  Federal  judiciary  to  revise 
the  decisions  of  State  courts  in  cases  arising  under  the  Constitution  and 
laws  of  the  United  States,  in  order  that  the  constitutional  grant  of  judicial 
power,  extending  it  to  all  such  cases,  may  have  full  effect.  He  says,  "  The 
propriety  of  intrusting  the  construction  of  the  Constitution  and  laws,  made 
in  pursuance  thereof,  to  the  judiciary  of  the  Union,  has  not,  we  believe,  as 
yet,  been  drawn  in  question.  It  seems  to  be  a  corollary  from  this  political 
axiom,  that  the  Federal  courts  should  either  possess  exclusive  jurisdiction 
in  such  cases,  or  a  power  to  revise  the  judgment  rendered  in  them  by  the 
State  tribunals.  If  the  Federal  and  State  courts  have  concurrent  jurisdic- 
tion in  all  cases  arising  under  the  Constitution,  laws,  and  treaties  of  the 
United  States,  and  if  a  case  of  this  description  brought  in  a  State  court 
cannot  be  removed  before  judgment,  nor  revised  after  judgment,  then  the 
construction  of  the  Constitution,  laws,  and  treaties  of  the  United  States 
is  not  confided  particularly  to  their  judicial  department,  but  is  confided 
equally  to  that  department  and  to  the  State  courts,  however  they  may  be 
constituted.1 

The  Clafflin  case  was  one  to  test  the  nature  and  extent  of  concurrent 
jurisdiction  on  the  part  of  the  State  and  Federal  courts,  inasmuch  as  it 
involved  a  question  of  bankruptcy,  which,  under  the  bankruptcy  law  of  the 
United  States,  passed  by  Congress  pursuant  to  Article  I,  Section  8,  of  the 
Constitution,  invests  Congress  with  the  power  "to  establish  .  .  .  uniform 
Laws  on  the  subject  of  Bankruptcies  throughout  the  United  States."  Speak- 
ing for  the  court,  Mr.  Justice  Bradley  said  and  concluded: 

We  hold  that  the  assignee  in  bankruptcy,  under  the  Bankrupt  Act  of 
1867,  as  it  stood  before  the  revision,  had  authority  to  bring  a  suit  in  the 
State  courts,  wherever  those  courts  were  invested  with  appropriate  juris- 
diction, suited  to  the  nature  of  the  case.2 

The  last  case  to  be  considered  in  this  connection  is  that  of  Ames  v. 
Kansas  (111  U.  S.,  449),  decided  in  1884,  in  which  the  court  had  occasion 
to  consider  the  original  and  appellate  jurisdiction  of  the  United  States,  and 
to  establish  the  principle  that,  even  in  those  cases  in  which  the  Supreme 
Court  has  original  jurisdiction  by  the  Constitution,  the  term  "  original "  is 
not  necessarily  exclusive. 

After  referring  to  the  judicial  clause  of  the  Constitution,  to  the  judiciary 
act  of  1789,  passed  within  six  months  after  the  inauguration  of  the  Gov- 
ernment under  the  Constitution,  vesting  suits  against  Ambassadors  in  the 

1  93  U.  S.,  142. 
•  Ibid.,  143. 


EXTENT   AND    EXERCISE   OF    JUDICIAL    POWER  417 

Supreme  Court  as  could  be  brought  against  ambassadors,  "  and  original, 
but  not  exclusive,  jurisdiction  of  all  suits  brought  by  ambassadors,  or  other 
public  ministers,  or  to  which  a  consul,  or  vice-consul  shall  be  a  party,"  Mr. 
Chief  Justice  Waite,  speaking  for  a  unanimous  court,  said: 

It  thus  appears  that  the  first  Congress,  in  which  were  many  who  had 
been  leading  and  influential  members  of  the  convention,  and  who  were 
familiar  with  the  discussions  that  preceded  the  adoption  of  the  Constitu- 
tion by  the  States  and  with  the  objections  urged  against  it,  did  not  under- 
stand that  the  original  jurisdiction  vested  in  the  Supreme  Court  was  neces- 
sarily exclusive.  That  jurisdiction  included  all  cases  affecting  ambassadors, 
other  public  ministers  and  consuls,  and  those  in  which  a  State  was  a  party. 
The  evident  purpose  was  to  open  and  keep  open  the  highest  court  of  the 
nation  for  the  determination,  in  the  first  instance,  of  suits  involving  a  State 
or  a  diplomatic  or  commercial  representative  of  a  foreign  government.  So 
much  was  due  to  the  rank  and  dignity  of  those  for  whom  the  provision 
was  made ;  but  to  compel  a  State  to  resort  to  this  one  tribunal  for  the 
redress  of  all  its  grievances,  or  to  deprive  an  ambassador,  public  minister 
or  consul  of  the  privilege  of  suing  in  any  court  he  chose  having  jurisdic- 
tion of  the  parties  and  the  subject  matter  of  his  action,  would  be,  in  many 
cases,  to  convert  what  was  intended  as  a  favor  into  a  burden.1 

The  Chief  Justice  and  his  brethren  were  of  opinion  that  the  purpose  of  the 
framers  of  the  Constitution  would  be  subserved  if  the  parties  entitled  to 
invoke  the  original  jurisdiction  of  the  Supreme  Court  could  not  be  made 
defendants  in  another  tribunal.    Thus,  the  Chief  Justice  said: 

Acting  on  this  construction  of  the  Constitution,  Congress  took  care  to 
provide  that  no  suit  should  be  brought  against  an  ambassador  or  other  public 
minister  except  in  the  Supreme  Court,  but  that  he  might  sue  in  any  court 
he  chose  that  was  open  to  him.  As  to  consuls,  the  commercial  represen- 
tatives of  foreign  governments,  the  jurisdiction  of  the  Supreme  Court  was 
made  concurrent  with  the  District  Courts,  and  suits  of  a  civil  nature  could 
be  brought  against  them  in  either  tribunal.  ...  In  this  way  States, 
ambassadors,  and  public  ministers  were  protected  from  the  compulsory 
process  of  any  court  other  than  one  suited  to  their  high  positions,  but  were 
left  free  to  seek  redress  for  their  own  grievances  in  any  court  that  had  the 
requisite  jurisdiction.  No  limits  were  set  on  their  powers  of  choice  in  this 
particular.  This,  of  course,  did  not  prevent  a  State  from  allowing  itself 
to  be  sued  in  its  own  courts  or  elsewhere  in  any  way  or  to  any  extent  it 
chose.2 

After  an  examination  of  the  precedents,  Mr.  Chief  Justice  Waite  thus  con- 
cluded the  portion  of  the  opinion  material  to  the  present  purpose : 

In  view  of  the  practical  construction  put  on  this  provision  of  the  Con- 
stitution by  Congress  at  the  very  moment  of  the  organization  of  the  gov- 

Mll  U.  S..  464. 
'Ibid..  464-5. 


418  THE    UNITED   STATES:   A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

eminent,  and  of  the  significant  fact  that  from  1789  until  now  no  court  of 
the  United  States  has  ever  in  its  actual  adjudications  determined  to  the 
contrary,  we  are  unable  to  say  that  it  is  not  within  the  power  of  Congress 
to  grant  to  the  inferior  courts  of  the  United  States  jurisdiction  in  cases 
where  the  Supreme  Court  has  been  vested  by  the  Constitution  with  original 
jurisdiction.  It  rests  with  the  legislative  department  of  the  government  to 
say  to  what  extent  such  grants  shall  be  made,  and  it  may  safely  be  assumed 
that  nothing  will  ever  be  done  to  encroach  upon  the  high  privileges  of 
those  for  whose  protection  the  constitutional  provision  was  intended.  At 
any  rate,  we  are  unwilling  to  say  that  the  power  to  make  the  grant  does 
not  exist.1 


Confusion 
over 

Political  v. 
Judicial 
Questions 


In  the  Federal  Convention  which  adopted  the  Constitution,  it  was  pro- 
posed to  establish  a  council  of  revision  to  pass  upon  the  acts  of  the  State 
legislatures  and  upon  those  of  the  Congress,  and,  in  appropriate  cases,  to 
negative  the  acts  of  each.  Omitting  details  and  the  various  forms  which 
this  proposition  assumed,  it  is  sufficient  for  present  purposes  to  state  that, 
in  each  instance,  this  body  was  to  be  composed  in  part  of  the  national  judi- 
ciary, thus  investing  its  members  with  political  functions.  This  proposi- 
tion, in  various  forms  and  at  various  times,  was  urged  upon  the  Convention 
by  the  ablest  members,  such  as  Messrs.  Madison,  Wilson,  and  Ellsworth.  The 
Convention,  however,  wiser  than  its  wisest  members,  insisted  upon  the  sepa- 
ration of  judicial  and  political  powers,  and,  after  much  debate  and  delibera- 
tion, rejected  the  proposition,  for  the  very  substantial  reasons  contained  in 
a  few  of  the  many  passages  which  could  be  quoted  from  Mr.  Madison's 
Notes  of  the  debates. 


1.  Mr.  Ghorum  did  not  see  the  advantage  of  employing  the  Judges  in  this 
way.  As  Judges  they  are  not  to  be  presumed  to  possess  any  peculiar  knowl- 
edge of  the  mere  policy  of  public  measures. 

2.  Mr.  Gerry  did  not  expect  to  see  this  point  which  had  undergone  full 
discussion,  again  revived.  .  .  .  The  motion  was  liable  to  strong  objec- 
tions. It  was  combining  &  mixing  together  the  Legislative  &  the  other 
departments.  It  was  establishing  an  improper  coalition  between  the 
Executive  &  Judiciary  departments.  It  was  making  Statesmen  of  the 
Judges ;  and  setting  them  up  as  the  guardians  of  the  Rights  of  the  people. 
...  It  was  making  the  Expositors  of  the  Laws,  the  Legislators  which 
ought  never  to  be  done. 

3.  Mr.  Strong  thought  with  Mr.  Gerry  that  the  power  of  making  ought  to 
be  kept  distinct  from  that  of  expounding,  the  laws.  No  maxim  was  better 
established.  The  Judges  in  exercising  the  function  of  expositors  might  be 
influenced  by  the  part  they  had  taken,  in  framing  the  laws. 

4.  Mr.  L.  Martin  considered  the  association  of  the  Judges  with  the  Execu- 
tive as  a  dangerous  innovation;  ...  A  knowledge  of  Mankind,  and  of 
Legislative  affairs  cannot  be  presumed  to  belong  in  a  higher  degree  to  the 
Judges  than  to  the  Legislature.  And  as  to  the  Constitutionality  of  the 
laws,  that  point  will  come  before  the  Judges  in  their  proper  official  charac- 


Mll  U.S.,  469. 


EXTENT   AND    EXERCISE   OF   JUDICIAL    POWER  419 

ter.     In  this  character  they  have  a  negative  on  the  laws.     Join  them  with 
the  Executive  in  the  Revision  and  they  will  have  a  double  negative. 

5.  Mr.  Gerry  had  rather  give  the  Executive  an  absolute  negative  for  its 
own  defence  than  thus  to  blend  together  the  Judiciary  &  Executive  depart- 
ments. It  will  bind  them  together  in  an  offensive  and  defensive  alliance 
agst.  the  Legislature,  and  render  the  latter  unwilling  to  enter  into  a  contest 
with  them. 

6.  Mr.  Ghorum.  All  agree  that  a  check  on  the  Legislature  is  necessary. 
But  there  are  two  objections  agst.  admitting  the  Judges  to  share  in  it  which 
no  observations  on  the  other  side  seem  to  obviate.  The  1st.  is  that  the  Judges 
ought  to  carry  into  the  exposition  of  the  laws  no  prepossessions  with 
regard  to  them.  2d.  that  as  the  Judges  will  outnumber  the  Executive,  the 
revisionary  check  would  be  thrown  entirely  out  of  the  Executive  hands,  and 
instead  of  enabling  him  to  defend  himself,  would  enable  the  Judges  to 
sacrifice  him. 

7.  Mr.  Rutlidge  thought  the  Judges  of  all  men  the  most  unfit  to  be  con- 
cerned in  the  revisionary  Council.  The  Judges  ought  never  to  give  their 
opinion  on  a  law  till  it  comes  before  them.  He  thought  it  equally  unneces- 
sary. The  Executive  could  advise  with  the  officers  of  State,  as  of  war, 
finance  &c.  and  avail  himself  of  their  information  and  opinions.1 

8.  Mr.  Sherman.  Can  one  man  be  trusted  better  than  all  the  others  if 
they  all  agree  ?  This  was  neither  wise  nor  safe.  He  disapproved  of 
Judges  meddling  in  politics  and  parties.2 

It  was  clearly  the  intention  of  the  framers  that  the  judiciary  should  not 
busy  itself  with  politics,  and  repeated  decisions  of  the  Supreme  Court  have 
given  effect  to  their  intention,  that  the  judicial  power  does  not  extend  to 
political  questions.  Controversies  between  States  were  not  justiciable  before 
the  Constitution  of  the  United  States.  They  were  political  questions,  and 
as  such  they  were  not  submitted,  or  were  not  regarded  as  capable  of  sub- 
mission, to  a  court  of  justice.  This  fact  was  adverted  to  by  Mr.  Justice 
Bradley  in  Hans  v.  Louisiana  (134  U.  S.,  1,  15),  decided  in  1889,  who  said, 
on  behalf  of  the  court: 

The  truth  is,  that  the  cognizance  of  suits  and  actions  unknown  to  the 
law,  and  forbidden  by  the  law,  was  not  contemplated  by  the  Constitution 
when  establishing  the  judicial  power  of  the  United  States. 

Had  he  stopped  here,  questions  at  that  time  considered  political  would  have 
remained  so,  but  he  adds : 

Some  things,  undoubtedly,  were  made  justiciable  which  were  not  known 
as  such  at  the  common  law;  such,  for  example,  as  controversies  between 
States  as  to  boundary  lines,  and  other  questions  admitting  of  judicial 
solution. 

'Documentary  History  of  the  Constitution,  Vol.  Ill,  pp.  391-9.     Session  of  July  21st. 
'Ibid.,  p.  539.     Session  of  August  15ft. 


420 


THE    UNITED   STATES:   A   STUDY   IN    INTERNATIONAL   ORGANIZATION 


How 

Political 

Questions 

Become 
Judicial 


The  distinction,  therefore,  is  not  hard  and  fast.  Things  political  may 
become  justiciable,  and  therefore  submitted  to  a  court  for  decision;  and 
the  question  arises,  how  this  transformation  may  be  brought  about.  For- 
tunately, we  do  not  need  to  indulge  in  speculative  or  theoretical  reasoning, 
for  we  have  on  this  very  point  the  authority  of  the  Supreme  Court  of  the 
United  States,  showing  ( I )  how  political  power,  vested  originally  in  the 
crown,  became  judicial  by  submission  to  courts  of  justice;  (2)  that  con- 
troversies between  the  colonies,  settled  as  such  by  the  King  in  Council  be- 
cause they  had  no  other  common  superior,  became  by  the  same  process 
judicial  when  submitted  to  a  court  of  justice;  and  (3),  that  the  agreement 
by  the  States  of  the  American  Union  to  submit  their  controversies  to  courts 
of  justice  made  them  justiciable. 

In  Rhode  Island  v.  Massachusetts  (12  Peters,  657),  decided  in  1838,  this 
whole  question  was  examined,  the  distinction  between  judicial  and  political 
questions  outlined  and  denned  and  the  process  by  which  questions,  originally 
political,  could  become  justiciable,  and  therefore  judicial,  stated  and  applied. 
In  proof  of  the  first  of  these  contentions,  Mr.  Justice  Baldwin,  delivering 
the  opinion  of  the  court  in  this  case,  quotes  an  early  English  statute  and 
Coke's  Institutes,  of  hardly  less  authority.  The  learned  Justice  quotes  the 
statute  of  20  Edward  III,  Chapter  I,  The  passages  from  Coke's  Institutes, 
referring  to  and  summarizing  this  among  other  statutes,  are  as  follows: 


First,  where  Bracton  saith,  Habet  rex  plures  curias  in  quibus  diversae 
actiones  tcrminantur;  Hereby,  and  in  effect  by  Britton,  and  this  conclusion 
followeth,  that  the  King  hath  committed  and  distributed  all  his  whole  power 
of  judicature  to  severall  Courts  of  Justice,  and  therefore  the  judgement  must 
be  id co  consider atum  est  per  Curiam.  And  herewith  do  agree  divers  Acts  of 
parliament  and  Book  cases,  some  whereof,  for  illustration,  we  will  briefly 
remember;  and  leave  the  judicious  reader  to  the  rest 

8  H.  4.  the  King  hath  committed  all  his  power  judiciall,  some  in  one 
Court,  and  some  in  another,  so  as  if  any  would  render  himselfe  to  the  judge- 
ment of  a  King  in  such  case  where  the  king  hath  committed  all  his  power 
judiciall  to  others,  such  a  render  should  be  to  no  effect.  An  8  H.  6.  the 
king  doth  judge  by  his  Judges  (the  king  having  distributed  his  power 
judiciall  to  several  Courts)  And  the  king  hath  wholly  left  matters  of  judica- 
ture according  to  his  lawes  to  his  Judges.1 

Therefore,  as  the  interpretation  of  an  agreement  is  a  judicial  question,  the 
compact  between  Penn  and  Lord  Baltimore  concerning  the  boundaries  of 
Pennsylvania,  Delaware  and  Maryland  was  referred  to  a  court  of  justice, 
because  it  was  an  agreement,  and  to  that  particular  court  of  justice  called 
the  High  Court  of  Chancery,  because  that  tribunal  alone  enforced  the  specific 


1  Sir  Edward  Coke,  The  Fourth  Part  of  the  Institutes  of  the  Lazes  of  England,  1644, 
pp.  70-71. 


EXTENT   AND    EXERCISE   OF   JUDICIAL    POWER  421 

performance  of  an  agreement,  as  prayed  by  Penn  in  that  case.  Where 
there  was  no  agreement,  the  king  in  council  took  jurisdiction  and  decided  by 
virtue  of  his  political  prerogative,  with  the  advice  of  his  members,  who  sat 
as  advisers. 

From  the  detailed  and  closely  knit  argument  of  Mr.  Justice  Baldwin  the 
following  passage  may  be  quoted,  as  showing  the  process  by  which  he  reached 
his  conclusion,  as  well  as  the  conclusion  itself: 

The  king  had  no  jurisdiction  over  boundary  within  the  realm,  without 
he  had  it  in  all  his  dominions,  as  the  absolute  owner  of  the  territory,  from 
whom  all  title  and  power  must  flow,  1  Bl.  Com.  241 ;  Co.  Litt.  1 ;  Hob.  322; 
7  D.  C.  D.  76;  Cowp.  205-11 ;  7  Co.  17,  b.,  as  the  supreme  legislator;  save  a 
limited  power  in  parliament.  He  could  make  and  unmake  boundaries  in 
any  part  of  his  dominions,  except  in  proprietary  provinces.  He  exercised 
this  power  by  treaty,  as  in  1763,  by  limiting  the  colonies  to  the  Mississippi, 
whose  charters  extended  to  the  South  sea ;  by  proclamation,  which  was  a 
supreme  law,  as  in  Florida  and  Georgia,  12  Wheat.  524;  1  Laws  U.  S.  443- 
51 ;  by  order  in  council,  as  between  Massachusetts  and  New  Hampshire, 
cited  in  the  argument.  But  in  all  cases  it  was  by  his  political  power,  which 
was  competent  to  dismember  royal,  though  it  was  not  exercised  on  the 
chartered  or  proprietary  provinces.  M'Intosh  v.  Johnson,  8  Wheaton,  580.  In 
council,  the  king  had  no  original  judicial  power,  1  Ves.  sen.  447.  He  decided 
on  appeals  from  the  colonial  courts,  settled  boundaries,  in  virtue  of  his 
prerogative,  where  there  was  no  agreement;  but  if  there  is  a  disputed  agree- 
ment, the  king  cannot  decree  on  it,  and  therefore,  the  council  remit  it  to 
be  determined  in  another  place,  on  the  foot  of  the  contract,  1  Ves.  sen.  447. 
In  virtue  of  his  prerogative,  where  there  was  no  agreement,  1  Ves.  sen.  205, 
the  king  acts  not  as  a  judge,  but  as  the  sovereign  acting  by  the  advice  of 
his  counsel,  the  members  whereof  do  not  and  cannot  sit  as  judges.  By  the 
statute  20  E.  3,  ch.  1,  it  is  declared,  that  "  the  king  hath  delegated  his  whole 
judicial  power  to  the  judges,  all  matters  of  judicature  according  to  the 
laws,"  1  Ruff.  246;  4  Co.  Inst.  70,  74;  he  had,  therefore,  none  to  exercise: 
and  judges,  though  members  of  council,  did  not  sit  in  judicature,  but  merely 
as  his  advisers.1 

And  after  an  elaborate  examination  of  English  precedent  and  cases,  including 
the  judicial  interpretation  of  compacts  between  nations,  Mr.  Justice  Baldwin 
concluded : 

From  this  view  of  the  law  of  England,  the  results  are  clear,  that  the  settle- 
ment of  boundaries  by  the  king  in  council,  is  by  his  prerogative ;  which  is 
political  power  acting  on  a  political  question  between  dependent  corpora- 
tions or  proprietaries,  in  his  dominions  without  the  realm.  When  it  is  done 
in  chancery,  it  is  by  its  judicial  power,  in  "  judicature  according  to  the  law," 
and  necessarily  a  judicial  question,  whether  it  relates  to  the  boundary  of 
provinces,  according  to  an  agreement  between  the  owners,  as  Penn  v.  Balti- 
more [1  Ves.  sen.  448]  ;  the  title  to  a  feudal  kingdom,  in  a  suit  appropriate 

1 12  Peters,  739. 


422  THE   UNITED    STATES  :   A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

to  equity,  where  the  feudal  king  appears  and  pleads,  as  in  the  case  of  the 
Isle  of  Man;  or  on  an  agreement  between  a  foreign  sovereign  and  the  East 
India  Company,  in  their  mere  corporate  capacity.  But  when  the  company 
assumed  the  character  of  a  sovereign,  assert  the  agreement  to  be  a  "  federal 
treaty,"  between  them  and  the  plaintiff,  as  neighbouring  sovereigns,  each  inde- 
pendent, and  the  subject  matter  to  be  peace  and  war,  political  in  its  nature, 
on  which  no  municipal  court  can  act  by  the  law  of  nations,  chancery  has  no 
jurisdiction  but  to  dismiss  the  bill.  Not  because  it  is  founded  on  a  treaty, 
but  because  the  defendant  refused  to  submit  it  to  judicial  power;  for,  had  the 
company  not  made  the  objection,  by  their  answer,  the  court  must  have  pro- 
ceeded as  in  The  King  of  Spain  v.  Machado  [4  Russell,  225],  and  decreed 
on  the  validity,  as  well  as  the  construction  of  the  treaties.  The  court,  in  one 
case,  could  not  force  a  sovereign  defendant  to  submit  the  merits  of  the  case  to 
their  cognizance ;  but  in  the  other,  when  he  was  plaintiff,  and  a  subject  was 
a  defendant,  who  appeared  and  plead,  the  whole  subject  matter  of  the  plead- 
ings was  decided  by  judicial  power,  as  a  judicial  question;  and  such  has  been, 
and  is  the  settled  course  of  equity  in  England.1 

Armed  with  these  precedents,  Mr.  Justice  Baldwin  turns  his  attention  in  the 
following  passage  to  the  colonies  and  States  of  the  American  Union : 

In  the  colonies,  there  was  no  judicial  tribunal  which  could  settle  bound- 
aries between  them;  for  the  court  of  one  could  not  adjudicate  on  the  rights  of 
another,  unless  as  a  plaintiff.  The  only  power  to  do  it  remained  in  the  king, 
where  there  was  no  agreement ;  and  in  chancery,  where  there  was  one,  and  the 
parties  appeared ;  so  that  the  question  was  partly  political  and  partly  judicial, 
and  so  remained  till  the  declaration  of  independence.  Then  the  states,  being  in- 
dependent, reserved  to  themselves  the  power  of  settling  their  own  boundaries, 
which  was  necessarily  a  purely  political  matter,  and  so  continued  until  1781. 
Then  the  states  delegated  the  whole  power  over  controverted  boundaries  to 
congress,  to  appoint  and  its  court  to  decide,  as  judges,  and  give  a  final 
sentence  and  judgment  upon  it,  as  a  judicial  question,  settled  by  specially 
appointed  judicial  power,  as  the  substitute  of  the  king  in  council,  and  the 
court  of  chancery  in  a  proper  case;  before  the  one  as  a  political,  and  the 
other  as  a  judicial  question. 

Then  came  the  constitution,  which  divided  the  power  between  the  political 
and  judicial  departments,  after  incapacitating  the  states  from  settling  their 
controversies  upon  any  subject,  by  treaty,  compact,  or  agreement;  and  com- 
pletely reversed  the  long  established  course  of  the  laws  of  England.  Com- 
pacts and  agreements  were  referred  to  the  political,  controversies  to  the 
judicial  power.  This  presents  this  part  of  the  case  in  a  very  simple  and 
plain  aspect.  All  the  states  have  transferred  the  decision  of  their  controver- 
sies to  this  Court ;  each  had  a  right  to  demand  of  it  the  exercise  of  the  power 
which  they  had  made  judicial  by  the  confederation  of  1781  and  1788;  that 
we  should  do  that  which  neither  states  or  congress  could  do,  settle  the 
controversies  between  them.  We  should  forget  our  high  duty,  to  declare  to 
litigant  states  that  we  have  jurisdiction  over  judicial,  but  not  the  power  to 
hear  and  determine  political  controversies ;  that  boundary  was  of  a  political 
nature,  and  not  a  civil  one;  and  dismiss  the  plaintiff's  bill  from  our  records, 
without  even  giving  it  judicial  consideration.     We  should  equally  forget  the 

1 12  Peters,  742-3. 


EXTENT   AND    EXERCISE   OF   JUDICIAL    POWER  423 

dictate  of  reason,  the  known  rule  drawn  by  fact  and  law ;  that  from  the  na- 
ture of  a  controversy  between  kings  or  states,  it  cannot  be  judicial;  that 
where  they  reserve  to  themselves  the  final  decision,  it  is  of  necessity  by  their 
inherent  political  power ;  not  that  which  has  been  delegated  to  the  judges,  as 
matters  of  judicature,  according  to  the  law.1 

In  another  portion  of  his  opinion,  the  learned  Justice,  speaking  of  the  States 
of  the  American  Union,  says : 

Those  states,  in  their  highest  sovereign  capacity,  in  the  convention  of  the 
people  thereof ;  on  whom,  by  the  revolution,  the  prerogative  of  the  crown, 
and  the  transcendent  power  of  parliament  devolved,  in  a  plenitude  unim- 
paired by  any  act,  and  controllable  by  no  authority,  6  Wheat.  651 ;  8  Wheat. 
584,  88;  adopted  the  constitution,  by  which  they  respectively  made  to  the 
United  States  a  grant  of  judicial  power  over  controversies  between  two  or 
more  states.  By  the  constitution,  it  was  ordained  that  this  judicial  power, 
in  cases  where  a  state  was  a  party,  should  be  exercised  by  this  Court  as 
one  of  original  jurisdiction.  The  states  waived  their  exemption  from  judicial 
power,  6  Wheat.  378,  80,  as  sovereigns  by  original  and  inherent  right,  by 
their  own  grant  of  its  exercise  over  themselves  in  such  cases,  but  which  they 
■would  not  grant  to  any  inferior  tribunal.  By  this  grant,  this  Court  has 
acquired  jurisdiction  over  the  parties  in  this  cause,  by  their  own  consent  and 
delegated  authority ;  as  their  agent  for  executing  the  judicial  power  of  the 
United  States  in  the  cases  specified.2 

In  a  third  and  a  final  passage,  for  it  is  impossible  to  quote  or  to  sum- 
marize the  whole  opinion,  Mr.  Justice  Baldwin  not  only  states  the  process, 
the  reason  for  the  process,  but  the  procedure  to  be  followed  in  the  actual 
trial  and  disposition  of  controversies  between  States  submitted  to  a  court  of 
justice : 

The  founders  of  our  government  could  not  but  know,  what  has  ever 
been,  and  is  familiar  to  every  statesman  and  jurist,  that  all  controversies 
between  nations,  are,  in  this  sense,  political,  and  not  judicial,  as  none  but 
the  sovereign  can  settle  them.  In  the  declaration  of  independence,  the  states 
assumed  their  equal  station  among  the  powers  of  the  earth,  and  asserted 
that  they  could  of  right  do,  what  other  independent  states  could  do ;  "  de- 
clare war,  make  peace,  contract  alliances ;  "  of  consequence,  to  settle  their 
controversies  with  a  foreign  power,  or  among  themselves,  which  no  state, 
and  no  power,  could  do  for  them.  They  did  contract  an  alliance  with  France, 
in  1778;  and  with  each  other,  in  1781  :  the  object  of  both  was  to  defend  and 
secure  their  asserted  rights  as  states ;  but  they  surrendered  to  congress,  and 
its  appointed  Court,  the  right  and  power  of  settling  their  mutual  controver- 
sies;  thus  making  them  judicial  questions,  whether  they  arose  on  "boundary, 
jurisdiction,  or  any  other  cause  whatever  "  There  is  neither  the  authority 
of  law  or  reason  for  the  position,  that  boundary  between  nations  or  states,  is, 
in  its  nature,  any  more  a  political  question,  than  any  other  subject  on  which 

*  12  Peters,  743-4. 
'  Ibid.,  720. 


424  THE   UNITED   STATES:   A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

they  may  contend.  None  can  be  settled  without  war  or  treaty,  which  is  by 
political  power;  but  under  the  old  and  new  confederacy  they  could  and 
can  be  settled  by  a  court  constituted  by  themselves,  as  their  own  substitutes, 
authorized  to  do  that  for  states,  which  states  alone  could  do  before  We  are 
thus  pointed  to  the  true  boundary  line  between  political  and  judicial  power, 
and  questions.  A  sovereign  decides  by  his  own  will,  which  is  the  supreme 
law  within  his  own  boundary;  6  Peters,  714;  9  Peters,  748;  a  court,  or  judge, 
decides  according  to  the  law  prescribed  by  the  sovereign  power,  and  that  law 
is  the  rule  for  judgment.  The  submission  by  the  sovereigns,  or  states,  to  a 
court  of  law  or  equity,  of  a  controversy  between  them,  without  prescribing 
any  rule  of  decision,  gives  power  to  decide  according  to  the  appropriate  law 
of  the  case;  11  Ves.  294;  which  depends  on  the  subject  matter,  the  source 
and  nature  of  the  claims  of  the  parties,  and  the  law  which  governs  them. 
From  the  time  of  such  submission,  the  question  ceases  to  be  a  political  one, 
to  be  decided  by  the  sic  volo,  sic  jubeo,  of  political  power;  it  comes  to  the 
court  to  be  decided  by  its  judgment,  legal  discretion,  and  solemn  considera- 
tion of  the  rules  of  law  appropriate  to  its  nature  as  a  judicial  question,  de- 
pending on  the  exercise  of  judicial  power;  as  it  is  bound  to  act  by  known 
and  settled  principles  of  national  or  municipal  jurisprudence,  as  the  case 
requires. 

It  has  never  been  contended  that  prize  courts  of  admiralty  jurisdiction, 
or  questions  before  them,  are  not  strictly  judicial;  they  decide  on  questions 
of  war  and  peace,  the  law  of  nations,  treaties,  and  the  municipal  laws  of 
the  capturing  nation,  by  which  alone  they  are  constituted;  a  fortiori,  if  such 
courts  were  constituted  by  a  solemn  treaty  between  the  state  under  whose  au- 
thority the  capture  was  made,  and  the  state  whose  citizens  or  subjects  suffer 
by  the  capture.  All  nations  submit  to  the  jurisdiction  of  such  courts  over 
their  subjects,  and  hold  their  final  decrees  conclusive  on  rights  of  property. 
6  Cr.,  284-5. 

These  considerations  lead  to  the  definition  of  political  and  judicial  power 
and  questions ;  the  former  is  that  which  a  sovereign  or  state  exerts  by  his  or 
its  own  authority,  as  reprisal  and  confiscation;  3  Ves.,  429;  the  latter  is  that 
which  is  granted  to  a  court  or  judicial  tribunal.  So  of  controversies  between 
states ;  they  are  in  their  nature  political,  when  the  sovereign  or  state  reserves 
to  itself  the  right  of  deciding  on  it;  makes  it  the  "  subject  of  a  treaty,  to  be 
settled  as  between  states  independent,"  or  "  the  foundation  of  representa- 
tions from  state  to  state."  This  is  political  equity,  to  be  adjudged  by  the 
parties  themselves,  as  contradistinguished  from  judicial  equity,  administered 
by  a  court  of  justice,  decreeing  the  equum  et  bonum  of  the  case,  let  who 
or  what  be  the  parties  before  them.1 

Application  Ouestions  political  in  their  nature  may  thus  become  judicial  by  submis- 

to  Society  ~  r  J  ,  \  .       .     ' 

of  Nations  slQn  to  a  court  of  justice,  to  be  decided  in  accordance  with  principles  of  law 

and  equity,  and  we  are  justified  in  the  belief  that  the  States  composing  the 
society  of  nations  can,  if  they  will,  agree  by  convention  to  submit  their  dis- 
putes to  a  tribunal  of  their  own  creation  for  the  settlement  of  their  contro- 
versies, just  as  the  States  composing  the  American  Union  agreed  by  constitu- 
tion to  submit  their  controversies  to  the  Supreme  Court  of  the  States. 

'  12  Peters,  736-8. 


XX 

CASE  —  CONTROVERSY  —  SUIT 

The  act  of  Congress  more  particularly  mentions  civil  controversies,  a  qualification  of 
the  general  word  in  the  Constitution,  which  I  do  not  doubt  every  reasonable  man  will 
think  well  warranted,  for  it  cannot  be  presumed  that  the  general  word  "controversies" 
was  intended  to  include  any  proceedings  that  relate  to  criminal  cases,  which  in  all  instances 
that  respect  the  same  Government,  only,  are  uniformly  considered  of  a  local  nature,  and 
to  be  decided  by  its  particular  laws.  (Mr.  Justice  Iredell  in  Chisholm  v.  Georgia,  2  Dallas, 
419,  431-432,  decided  in  1793.) 

A  case  in  law  or  equity  consists  of  the  right  of  the  one  party,  as  well  as  of  the  other, 
and  may  truly  be  said  to  arise  under  the  constitution  or  a  law  of  the  United  States,  when- 
ever its  correct  decision  depends  on  the  construction  of  either.  (Chief  Justice  Marshall  in 
Cohens  v.  Virginia,  6  Wheaton,  264,  379,  decided  in  1821.) 

The  article  does  not  extend  the  judicial  power  to  every  violation  of  the  constitution 
which  may  possibly  take  place,  but  to  "  a  case  in  law  or  equity,"  in  which  a  right,  under 
such  law,  is  asserted  in  a  Court  of  justice.  If  the  question  can  not  be  brought  into  a 
Court,  then  there  is  no  case  in  law  or  equity,  and  no  jurisdiction  is  given  by  the  words  of 
the  article  But  if,  in  any  controversy  depending  in  a  Court,  the  cause  should  depend  on 
the  validity  of  such  a  law,  that  would  be  a  case  arising  under  the  constitution,  to  which 
the  judicial  power  of  the  United  States  would  extend.  (Chief  Justice  Marshall  in  Cohens 
v.  Virginia,  6  Wheaton,  264,  405,  decided  in  1821.) 

That  power  is  capable  of  acting  only  when  the  subject  is  submitted  to  it  by  a  party 
who  asserts  his  rights  in  the  form  prescribed  by  law.  It  then  becomes  a  case,  and  the 
constitution  declares,  that  the  judicial  power  shall  extend  to  all  cases  arising  under  the 
constitution,  laws,  and  treaties  of  the  United  States.  (Chief  Justice  Marshall  in  Osborn  v. 
Bank  of  the  United  States,  9  Wheaton,  738,  819,  decided  in  1824.) 

What  then  is  to  be  done  if  these  limitations  of  power  are  transgressed  by  any  State, 
or  by  the  United  States?  The  duty  of  annulling  such  usurpations  is  confided  by  the  Third 
Article  of  the  Constitution  to  the  Supreme  Court,  and  to  such  inferior  Courts  as  Congress 
may  from  time  to  time  ordain  and  establish.  But  this  remarkable  power  is  capable  only 
of  indirect  exercise;  it  is  called  into  activity  by  "cases,"  by  actual  controversies,  to  which 
individuals,  or  States,  or  the  United  States,  are  parties.  The  point  of  unconstitutionality 
is  raised  by  the  arguments  in  such  controversies;  and  the  decision  of  the  Court  follows 
the  view  which  it  takes  of  the  Constitution.  A  declaration  of  unconstitutionality,  not 
provoked  by  a  definite  dispute,  is  unknown  to  the  Supreme  Court.  (Sir  Henry  Sumner 
Maine,  Popular  Government,  1886,  pp.  217-218.) 

In  order  to  entitle  the  party  to  the  remedy  a  case  must  be  presented  appropriate  for 
the  exercise  of  judicial  power,  the  rights  in  danger  must  be  rights  of  persons  or  property; 
not  merely  political  rights,  which  do  not  belong  to  the  jurisdiction  of  a  court,  either  in 
law  or  equity.     State  of  Georgia  v.  Stanton,  6  Wall.  50,  76 

When  a  right  is  asserted  by  a  party  before  a  court  in  the  manner  prescribed  by  law, 
it  then  becomes  a  case  to  which  the  judicial  power  extends.  This  includes  the  right  of 
both  parties  to  the  litigation  ;  and  the  case  may  be  said  to  arise  whenever  its  correct 
decision  is  dependent  upon  the  construction  of  the  Constitution,  laws,  or  treaties  of  the 
United  States.  (Mr.  Justice  Miller,  Lectures  on  the  Constitution  of  the  United  States, 
1891,  p.  315,  note.) 

The  President  of  the  United  States  of  America  and  His  Majesty  the  King  of  the 
United  Kingdom  of  Great  Britain  and  Ireland  and  of  the  British  Dominions  beyond  the 
Seas,  Emperor  of  India,  desiring  in  pursuance  of  the  principles  set  forth  in  Articles  15-19 
of   the    Convention    for   the   pacific    settlement    of    international    disputes,    signed    at    The 

425 


426  THE  UNITED  STATES  :  A  STUDY  IN  INTERNATIONAL  ORGANIZATION 

Hague  July  29,  1899,  to  enter  into  negotiations  for  the  conclusion  of  an  Arbitration  Con- 
vention, have  named  as  their  Plenipotentiaries,  to  wit: 

The  President  of  the  United  States  of  America,  Elihu  Root,  Secretary  of  State  of  the 
United  States,  and 

His  Majesty  the  King  of  the  United  Kingdom  of  Great  Britain  and  Ireland  and  of 
the  British  Dominions  beyond  the  Seas,  Emperor  of  India,  The  Right  Honorable  James 
Bryce,  O.  M  , 

who,  after  having  communicated  to  one  another  their  full  powers,  found  in  good  and 
due  form,  have  agreed  upon  the  following  articles : 

Article  I.  Differences  which  may  arise  of  a  legal  nature  or  relating  to  the  inter- 
pretation of  treaties  existing  between  the  two  Contracting  Parties  and  which  it  may  not 
have  been  possible  to  settle  by  diplomacy,  shall  be  referred  to  the  Permanent  Court  of 
Arbitration  established  at  The  Hague  by  the  Convention  of  the  29th  of  July,  1899, 
provided,  nevertheless,  that  they  do  not  affect  the  vital  interests,  the  independence,  or 
the  honor  of  the  two  Contracting  States,  and  do  not  concern  the  interests  of  third 
Parties. 

Article  II.  In  each  individual  case  the  High  Contracting  Parties,  before  appealing 
to  the  Permanent  Court  of  Arbitration,  shall  conclude  a  special  Agreement  defining 
clearly  the  matter  in  dispute,  the  scope  of  the  powers  of  the  Arbitrators,  and  the  periods 
to  be  fixed  for  the  formation  of  the  Arbitral  Tribunal  and  the  several  stages  of  the 
procedure  It  is  understood  that  such  special  agreements  on  the  part  of  the  United 
States  will  be  made  by  the  President  of  the  United  States,  by  and  with  the  advice  and 
consent  of  the  Senate  thereof;  His  Majesty's  Government  reserving  the  right  before 
concluding  a  special  agreement  in  any  matter  affecting  the  interests  of  a  self-governing 
Dominion  of  the  British  Empire  to  obtain  the  concurrence  therein  of  the  Government 
of  that   Dominion. 

Such  Agreements  shall  be  binding  only  when  confirmed  by  the  two  Governments  by 
an  Exchange  of  Notes. 

Article  III.  The  present  Convention  shall  be  ratified  by  the  President  of  the 
United  States  of  America  by  and  with  the  advice  and  consent  of  the  Senate  thereof, 
and  by  His  Britannic  Majesty.  The  ratifications  shall  be  exchanged  at  Washington  as 
soon  as  possible,  and  the  Convention  shall  take  effect  on  the  date  of  the  exchange  of 
its  ratifications. 

Article  IV.  The  present  Convention  is  concluded  for  a  period  of  five  years,  dating 
from  the  day  of  the  exchange  of  its  ratifications. 

Done  in  duplicate  at  the  City  of  Washington,  this  fourth  day  of  April,  in  the  year 
1908. 

Elihu  Root     [seal] 
James  Bryce    [seal] 
(Arbitration  Convention  between  the  United  States  and  Great  Britain,  Signed  at  Wash- 
ington April  4,  jpoS.     U.  S.  Statutes  at  Large,  Vol.  XXXV,  pp.  1960-1961.) 

The  high  contracting  powers  agree  to  refer  to  the  existing  Permanent  Court  of  Arbi- 
tration at  The  Hague,  or  to  the  Court  of  Arbitral  Justice  proposed  at  the  Second  Hague 
Conference  when  established,  or  to  some  other  Arbitral  Tribunal,  all  disputes  between 
them  (including  those  affecting  honor  and  vital  interests)  which  are  of  a  justiciable  char- 
acter, and  which  the  powers  concerned  have  failed  to  settle  by  diplomatic  methods.  The 
powers  so  referring  to  arbitration  agree  to  accept  and  give  effect  to  the  award  of  the 
Tribunal. 

Disputes  of  a  justiciable  character  are  defined  as  disputes  as  to  the  interpretation  of 
a  treaty,  as  to  any  question  of  international  law,  as  to  the  existence  of  any  fact  which  if 
established  would  constitute  a  breach  of  any  international  obligation,  or  as  to  the  nature 
and  extent  of  the  reparation  to  be  made  for  any  such  breach. 

Any  question  which  may  arise  as  to  whether  a  dispute  is  of  a  justiciable  character  is 
to  be  referred  for  decision  to  the  Court  of  Arbitral  Justice  when  constituted,  or,  until  it 
is  constituted,  to  the  existing  Permanent  Court  of  Arbitration  at  The  Hague.  (Article 
for  an  International  Convention  Defining  Disputes  of  a  Justiciable  Character,  proposed  by 
Elihu  Root,  and  printed  in  the  Proceedings  of  the  American  Society  of  International  Law, 
J919,  p.  50,  note  1.) 


Functions 
in  Case9 


CHAPTER  XX 

CASE CONTROVERSY SUIT 

The  entire  judicial  power  of  the  United  States,  created  by  the  Constitu-  coSrtme 
tion,  is  not  only  extended  to  all  cases  in  law  and  equity  arising  under  the 
Constitution,  the  laws  of  the  United  States,  and  treaties  made  or  which  shall  °nly 
be  made  under  their  authority;  but  its  exercise  depends  on  the  nature  of  a 
case  in  law  or  equity  of  the  kind  specified,  inasmuch  as  there  is  no  way  of 
obtaining  the  opinion  of  Federal  courts  and  of  their  judges  upon  the  Con- 
stitution, law  or  equity,  unless  a  specific  case  comes  before  them  in  litigation 
by  parties  claiming  a  right  under  the  provisions  of  one  or  other  of  these 
sources.  The  individual  is  protected  against  unlawful  action  on  the  part  of  a 
fellow-citizen,  a  State  of  the  Union,  or  the  Government  of  that  Union;  the 
rights  of  the  individual  States  are  guarded  against  the  encroachment  of  the 
Government  of  the  United  States,  or  in  controversies  between  themselves,  by 
a  case  in  law  or  equity  begun  in  the  courts.  The  Government  of  the  United 
States  is  protected  against  the  unlawful  conduct  of  the  individual  and  assaults 
of  the  States  by  a  case  in  law  or  equity,  submitted  to  the  courts  for  their  con- 
sideration and  decision.  The  threefold  division  of  power  among  the  depart- 
ments of  that  Government  is  maintained  by  the  simple  expedient  of  a  case  in 
law  or  equity,  differing,  indeed,  in  purpose ;  modified,  it  may  be,  in  form,  but 
identical  in  substance  with  the  case  in  law  or  equity  of  a  private  suitor.  For 
if  jurisdiction  depends  upon  a  case,  a  suit  or  controversy,  it  is  necessary  to 
determine  at  the  very  threshold  the  sense  in  which  the  word  case,  suit  or 
controversy  is  used  in  connection  with  the  judicial  power.  For  if  the  matter 
is  not  a  case,  suit  or  controversy,  falling  within  the  proper  exercise  of  this 
power,  there  is  nothing  whereof  the  court  can  take  jurisdiction,  and  there  is 
nothing  to  be  decided.  If  we  are,  as  so  often  stated,  a  government  of  laws,  not 
of  men,  it  is  the  court  which  interprets  the  laws,  passes  upon  the  conduct 
of  men,  and  stays  the  hand  of  government  itself  if  only  a  case  arise  under 
the  Constitution,  the  laws  and  treaties  of  the  United  States,  and  come  before 
courts  of  justice  in  the  ordinary  form  of  case,  suit,  or  controversy,  in  law 
or  equity. 

In  the  leading  case  of  Marbury  v.  Madison  (1  Cranch,  137),  decided  in 
1803,  in  which  John  Marshall,  as  Chief  Justice,  first  disclosed  to  the  bench   Decfian3=d 
and  bar  his  capacity  as  a  judge,  he  defined  a  case  to  be  a  suit  instituted  accord- 
ing to  the  regular  course  of   judicial   procedure.      In  two   later  cases   he 

427 


428  THE    UNITED   STATES:   A    STUDY    IN    INTERNATIONAL   ORGANI£ATION 

either  had  or  took  occasion  to  go  into  the  details  of  a  case,  to  analyze  and 
to  state  its  essentials  in  terms  which  his  successors  have  been  content  to  repeat 
and  to  follow.  In  Cohens  v.  Virginia  (6  Wheaton,  264,  379),  decided  in 
1821,  the  Chief  Justice  said: 

A  case  in  law  or  equity  consists  of  the  right  of  the  one  party,  as  well 
as  of  the  other,  and  may  truly  be  said  to  arise  under  the  constitution  or  a 
law  of  the  United  States,  whenever  its  correct  decision  depends  on  the  con- 
struction of  either. 

In  a  later  passage  of  his  opinion  (405),  he  adds: 

The  article  does  not  extend  the  judicial  power  to  every  violation  of  the 
constitution  which  may  possibly  take  place,  but  to  "  a  case  in  law  or  equity," 
in  which  a  right,  under  such  law,  is  asserted  in  a  court  of  justice.  If  the 
question  cannot  be  brought  into  a  court,  then  there  is  no  case  in  law  or 
equity,  and  no  jurisdiction  is  given  by  the  words  of  the  article  But  if,  in 
any  controversy  depending  in  a  court,  the  cause  should  depend  on  the 
validity  of  such  a  law,  that  would  be  a  case  arising  under  the  constitution, 
to  which  the  judicial  power  of  the  United  States  would  extend. 

And,  immediately  following  this  passage,  the  Chief  Justice  takes  up  and 
defines  the  term  suit,  used  in  the  11th  Amendment  apparently  synonymous 
with  case,  stating  not  only  the  nature  of  a  suit,  but  how  and  when  it  begins : 

"Suit"  What  is  a  suit?    We  understand  it  to  be  the  prosecution  or  pursuit  of 

some  claim,  demand  or  request ;  in  law  language,  it  is  the  prosecution 
of  some  demand  in  a  Court  of  justice.  The  remedy  for  every  species  of 
wrong  is,  says  Judge  Blackstone,  "  the  being  put  in  possession  of  that  right 
whereof  the  party  injured  is  deprived."  "  The  instruments  whereby  this 
remedy  is  obtained,  are  a  diversity  of  suits  and  actions,  which  are  defined 
by  the  Mirror,  to  be  '  the  lawful  demand  of  one's  right ; '  or,  as  Bracton 
and  Fleta  express  it,  in  the  words  of  Justinian,  '  jus  prosequendi  in  judicio 
quod  alicui  debetur.' "  Blackstone  then  proceeds  to  describe  every  species 
of  remedy  by  suit ;  and  they  are  all  cases  where  the  party  suing  claims 
to  obtain  something  to  which  he  has  a  right. 

To  commence  a  suit  is  to  demand  something  by  the  institution  of  process 
in  a  Court  of  justice ;  and  to  prosecute  the  suit,  is,  according  to  the  common 
acceptation  of  language,  to  continue  that  demand.  By  a  suit  commenced 
by  an  individual  against  a  State,  we  should  understand  process  sued  out 
by  that  individual  against  the  State,  for  the  purpose  of  establishing  some 
claim  against  it  by  the  judgment  of  a  court;  and  the  prosecution  of  that 
suit  is  its  continuance.  Whatever  may  be  the  stages  of  its  progress,  the 
actor  is  still  the  same.1 

Finally,  in  0 shorn  v.  Bank  of  the  United  States  (9  Wheaton,  737,  819), 
decided  in  1824,  the  same  Chief  Justice,  recurring  to  this  question,  thus 
discussed  it  in  its  larger  as  well  as  in  its  technical  bearings : 

'  6  Wheaton,  407-8. 


CASE CONTROVERSY SUIT  429 

It  is  said,  that  the  legislative,  executive  and  judicial  powers  of  every 
well-constructed  government,  are  co-extensive  with  each  other ;  that  is, 
they  are  potentially  co-extensive.  The  executive  department  may  consti- 
tutionally execute  every  law  which  the  legislature  may  constitutionally 
make,  and  the  judicial  department  may  receive  from  the  legislature  the 
power  of  construing  every  such  law.  All  governments  which  are  not 
extremely  defective  in  their  organization,  must  possess,  within  themselves, 
the  means  of  expounding,  as  well  as  enforcing,  their  own  laws.  If  we 
examine  the  constitution  of  the  United  States,  we  find,  that  its  framers  kept 
this  great  political  principle  in  view.  The  2d  article  vests  the  whole  execu- 
tive power  in  the  president ;  and  the  3d  article  declares,  "  that  the  judicial 
power  shall  extend  to  all  cases  in  law  and  equity,  arising  under  this  consti- 
tution, the  laws  of  the  United  States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority." 

This  clause  enables  the  judicial  department  to  receive  jurisdiction  to 
the  full  extent  of  the  constitution,  laws  and  treaties  of  the  United  States, 
when  any  question  respecting  them  shall  assume  such  a  form  that  the 
judicial  power  is  capable  of  acting  on  it.  That  power  is  capable  of  acting 
only  when  the  subject  is  submitted  to  it,  by  a  party  who  asserts  his  rights 
in  the  form  prescribed  by  law.  It  then  becomes  a  case,  and  the  constitution 
declares,  that  the  judicial  power  shall  extend  to  all  cases  arising  under  the 
constitution,  laws  and  treaties  of  the  United  States.1 

So  far,  case  or  suit  has  been  considered ;  but  the  Constitution  extends  the 
judicial  power  to  controversies  between  two  or  more  States,  not  to  all  con- 
troversies—  inasmuch  as  some  of  them  might  be  political  in  character,  and 
therefore  more  fitted  for  treaty  or  compact  than  judicial  decision  —  but  to 
controversies  of  a  justiciable  nature,  to  which  the  judicial  power  can  prop- 
erly extend.  This  phase  of  the  question  arose  in  the  case  of  Chisholm  v. 
Georgia  (2  Dallas,  419,  432),  decided  in  1793,  in  which  Mr.  Justice  Iredell 
said,  commenting  upon  the  judiciary  act  of  1789,  in  an  opinion  which  has 
commended  itself  to  posterity: 

The  act  of  Congress  more  particularly  mentions  civil  controversies,  a 
qualification  of  the  general  word  in  the  Constitution,  which  I  do  not  doubt 
every  reasonable  man  will  think  well  warranted,  for  it  cannot  be  presumed, 
that  the  general  word  "  controversies  "  was  intended  to  include  any  pro- 
ceedings that  relate  to  criminal  cases,  which  in  all  instances  that  respect 
the  same  Government  only,  are  uniformly  considered  of  a  local  nature,  and  to 
be  decided  by  its  particular  laws. 

In  In  re  Pacific  Railway  Commission  (32  Fed.  Rep.,  241,  255),  decided  controversies 
in  1887,  Mr.  Justice  Field,  sitting  at  circuit,  had  occasion  to  consider  the 
terms  cases  and  controversies,  to  be  found  in  the  second  section  of  the  third 
article  of  the  Constitution,  regarding  which  he  said : 

The  judicial  article  of  the  constitution  mentions  cases  and  controvef- 
sies.     The  term  "controversies,"  if  distinguishable  at  all   fiom  "cases,"  is 

'9  Wheaton,  818-19. 


430  THE    UNITED    STATES:   A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

so  in  that  it  is  less  comprehensive  than  the  latter,  and  includes  only  suits 
of  a  civil  nature.  Chisholm  v.  Georgia,  2  Dall.  431,  432;  1  Tuck.  Bl. 
Comm.  App.  420,  421.  By  cases  and  controversies  are  intended  the  claims 
of  litigants  brought  before  the  courts  for  determination  by  such  regular 
proceedings  as  are  established  by  law  or  custom  for  the  protection  or 
enforcement  of  rights,  or  the  prevention,  redress,  or  punishment  of  wrongs. 
Whenever  the  claim  of  a  party  under  the  constitution,  laws,  or  treaties  of 
the  United  States  takes  such  a  form  that  the  judicial  power  is  capable  of 
acting  upon  it,  then  it  has  become  a  case.  The  term  implies  the  existence 
of  present  or  possible  adverse  parties  whose  contentions  are  submitted  to 
the  court  for  adjudication. 

In  0 shorn  v.  U.  S.,  9  Wheat.  819,  the  supreme  court,  speaking  by  Chief 
Justice  Marshall,  after  quoting  the  third  article  of  the  constitution  declaring 
the  extent  of  the  judicial  power  of  the  United  States,  said: 

"  This  clause  enables  the  judicial  department  to  receive  jurisdiction 
to  the  full  extent  of  the  constitution,  laws,  and  treaties  of  the  United 
States,  when  any  question  respecting  them  shall  assume  such  a  form 
that  the  judicial  power  is  capable  of  acting  on  it.  That  pozver  is 
capable  of  acting  only  when  the  subject  is  submitted  to  it  by  a  party 
who  asserts  his  rights  in  the  form  prescribed  by  laiv.  It  then  becomes 
a  case,  and  the  constitution  declares,  that  the  judicial  power  shall 
extend  to  all  cases  arising  under  the  constitution,  laws,  and  treaties 
of  the  United  States." 

In  his  Commentaries  on  the  Constitution,  Mr.  Justice  Story  says: 

"  It  is  clear  that  the  judicial  department  is  authorized  to  exercise 
jurisdiction  to  the  full  extent  of  the  constitution,  laws,  and  treaties  of 
the  United  States,  whenever  any  question  respecting  them  shall  assume 
such  a  form  that  the  judicial  power  is  capable  of  acting  upon  it.  When 
it  has  assumed  such  a  form,  it  then  becomes  a  case;  and  then,  and  not 
till  then,  the  judicial  pozver  attaches  to  it.  A  case,  then,  in  the  sense 
of  this  clause  of  the  constitution,  arises  when  some  subject  touching 
the  constitution,  laws,  or  treaties  of  the  United  States  is  submitted  to 
the  courts  by  a  party  who  asserts  his  rights  in  the  form  prescribed 
by  law."  1 

And  Mr.  Justice  Story  refers  in  a  note  to  the  speech  of  Marshall  on 
the  case  of  Robbins,  in  the  house  of  representatives,  before  he  became  chief 
justice,  which  contains  a  clear  statement  of  the  conditions  upon  which  the 
judicial  power  of  the  United  States  can  be  exercised.     His  language  was: 

"  By  extending  the  judicial  power  to  all  cases  in  law  and  equity, 
the  constitution  has  never  been  understood  to  confer  on  that  depart- 
ment any  political  power  whatever.  To  come  within  this  description, 
a  question  must  assume  a  legal  form  for  forensic  litigation  and  judi- 
cial decision.  There  must  be  parties  to  come  into  court,  who  can  be 
reached  by  its  process,  and  bound  by  its  power ;  whose  rights  admit 
of  ultimate  decision  by  a  tribunal  to  which  they  are  bound  to  submit."  * 

1 32  Federal  Reporter,  256. 


CASE CONTROVERSY SUIT  431 

The  distinction  between  controversies  of  a  civil  and  criminal  nature,  first 
mentioned  by  Mr.  Justice  Iredell  in  the  Chisholm  case,  and  quoted  with 
approval  by  Mr.  Justice  Field,  was  affirmed  by  the  Supreme  Court  in  the 
case  of  Wisconsin  v.  Pelican  Insurance  Company  (127  U.  S.,  265),  decided 
in  1888  by  Mr.  Justice  Gray,  speaking  for  a  unanimous  court. 

But  cases  and  controversies  are  apparently  considered  as  synonymous, 
differing,  if  at  all,  in  that  the  latter  include  only  suits  of  a  civil  nature.  But 
a  case  and  a  controversy  are  identical  in  nature  and  coextensive  as  far  as 
they  go,  as  was  admirably  pointed  out  by  Putnam,  Circuit  Justice,  who  said, 
in  the  case  of  King  v.  McLean  Asylum  (64  Fed.  Rep.,  332,  335-6),  decided 
in  1894: 

The  appellees  rely  on  a  supposed  distinction  between  the  use  of  the 
word  "  cases  "  and  the  word  "  controversies  "  in  the  section  of  the  consti- 
tution defining  the  federal  judicial  power.  That  section  uses  the  word 
"  cases  "  in  the  first  three  clauses,  namely,  "  cases,  in  law  and  equity,"  aris- 
ing under  the  constitution  and  the  laws  and  treaties  of  the  United  States, 
"  cases  affecting  ambassadors,  other  public  ministers  and  consuls,"  and 
"  cases  of  admiralty  and  maritime  jurisdiction."  So  far  it  has  relation 
mainly,  although  not  entirely,  to  the  subject-matter  of  the  litigation,  and 
not  to  the  parties  involved.  It  then  changes  to  the  word  "  controversies," 
and  uses  this  with  reference  to  "  controversies  to  which  the  United  States 
shall  be  a  party,"  "  to  controversies  between  two  or  more  states,"  and  then, 
without  repeating  the  word,  continues  "  between  a  state  and  citizens  of 
another  state ;  between  citizens  of  different  states ;  between  citizens  of  the 
same  state  claiming  lands  under  grants  of  different  states,  and  between  a 
state,  or  the  citizens  thereof,  and  foreign  states,  citizens  or  subjects."  .  .  . 
The  change  under  consideration,  from  the  word  "  cases  "  to  the  word  "  con- 
troversies," will  be  found  to  have  been  a  mere  matter  of  style,  and  to  have 
no  relation  to  any  limitation  or  extension  of  the  class  of  questions  to  be 
adjudicated.  As  we  have  already  said,  so  long  as  this  section  of  the  con- 
stitution speaks  especially  with  reference  to  the  nature  of  the  questions 
involved,  it  uses  the  word  "  cases,"  but,  when  it  considers  more  particularly 
proceedings  having  relation  to  the  existence  of  parties,  it  uses  the  word 
"  controversies,"  probably  because,  when  parties  are  spoken  of  as  arrayed 
against  each  other,  literary  style  suggested  the  change. 

The  nature  of  a  case  was  considered,  not  merely  in  its  constitutional  but  F.ncars"a»ional 
in  its  international  aspect,  in  La  Abra  Silver  Mining  Co.  v.  United  States 
(175  U.  S.,  423,  457),  decided  in  1899,  in  which  the  Supreme  Court  was 
obliged  to  consider  an  award  in  behalf  of  a  citizen  of  the  United  States, 
rendered  in  his  favor  by  a  mixed  commission  organized  under  the  treaty  of 
July  4,  1868,  between  the  United  States  and  Mexico,  and  which  the  latter 
country  alleged  to  be  vitiated  by  the  fraud  of  the  American  claimant,  which, 
to  our  shame  be  it  said,  proved  to  be  only  too  true.  The  Congress,  which 
might  have  determined  the  matter,  referred  it  to  the  Court  of  Claims,  in 
accordance  with  the  observation  of  Mr.   Justice  Curtis,   speaking   for  the 


432  THE   UNITED    STATES-.   A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

court  in  Murray  v.  Hoboken  (18  Howard,  272,  284),  decided  in  1855,  who, 
after  saying  that  the  Congress  can  neither  "  withdraw  from  judicial  cog- 
nizance any  matter  which,  from  its  nature,  is  the  subject  of  a  suit  at  the 
common  law,  or  in  equity,  or  admiralty;  nor,  on  the  other  hand,  can  it 
bring  under  the  judicial  power  a  matter  which,  from  its  nature,  is  not  a 
subject  for  judicial  determination,"  stated,  however,  that  "  there  are  mat- 
ters, involving  public  rights,  which  may  be  presented  in  such  form  that  the 
judicial  power  is  capable  of  acting  on  them,  and  which  are  susceptible  of 
judicial  determination,  but  which  congress  may  or  may  not  bring  within 
the  cognizance  of  the  courts  of  the  United  States,  as  it  may  deem  proper." 

The  objection  taken  by  counsel  for  the  Silver  Mining  Co.  was  "  that 
the  Court  of  Claims  has  no  jurisdiction  over  this  matter,  because  it  is  not 
a  '  case '  within  the  meaning  of  the  Constitution,  nor  is  it  a  '  controversy  ' 
to  which  the  United  States  is  a  party."  The  question  whether  fraud  entered 
into  and  vitiated  a  transaction  is  clearly  a  judicial  question,  in  the  sense 
that  it  can  be  investigated  and  decided  by  a  court  of  justice,  and  therefore 
a  question  involving  this  is  of  necessity  a  suit  or  a  controversy  in  the  sense 
of  the  Constitution. 

As  previously  stated,  however,  the  government  can  not  consult  the  court 
nor  take  the  opinion  of  the  justices  at  its  discretion.  It  can  only  do  so  in 
a  judicial  proceeding,  and  not  in  a  moot  but  in  a  controverted  case.  It  was, 
therefore,  necessary  to  show  that  the  United  States  had  such  an  interest  in 
the  award  as  to  enable  it  to  appear  as  a  party  and  in  its  own  behalf  before 
the  court. 

The  interest  of  the  United  States  was  manifest,  in  that  it  had  espoused 
and  presented  the  claim  on  behalf  of  its  citizens  to  the  mixed  commission, 
which  it  should  not  have  done  if  such  claim  lacked  equity  and  was  void  in 
law;  and  in  that  the  moneys  awarded  by  the  mixed  commission  passed  to 
the  United  States  and  were  only  payable  to  the  claimant  to  whom  the  Gov- 
ernment is  satisfied  they  are  properly  due.  In  the  course  of  his  opinion, 
Mr.  Justice  Harlan,  speaking  for  a  unanimous  court,  referred  to  the  defini- 
tion of  case  given  in  the  decisions  already  quoted,  and  discussed  the  case 
of  Gordon  v.  United  States  (2  Wallace,  561;  117  U.  S.,  697),  decided  in 
1864,  to  the  effect  that  finality  of  decision  is  essential  to  the  exercise  of 
judicial  power.  In  the  following  passage  from  his  opinion,  he  brings  the 
question  within  the  requirements  of  the  Supreme  Court  in  the  matter  of 
case,  suit,  or  controversy: 

The  act  of  1892  is  to  be  taken  as  a  recognition,  so  far  as  the  United 
States  is  concerned,  of  the  legal  right  of  the  Company  to  receive  the 
moneys  in  question  unless  it  appeared  upon  judicial  investigation  that  the 
United  States  was  entitled,  by  reason  of  fraud  practised  in  the  interest  of 


CASE CONTROVERSY SUIT  433 

that  corporation,  to  withhold  such  moneys  from  it.  Here  then  is  a  matter 
subjected  to  judicial  investigation  in  respect  of  which  the  parties  assert 
rights  —  the  United  States  insisting  upon  its  right  under  the  principles  of 
international  comity  to  withhold  moneys  received  by  it  under  a  treaty  on 
account  of  a  certain  claim  presented  through  it  before  the  Commission 
organized  under  that  treaty  in  the  belief,  superinduced  by  the  claimant,  that 
it  was  an  honest  demand ;  the  claimant  insisting  upon  its  absolute  legal 
right  under  the  treaty  and  the  award  of  the  Commission,  independently  of 
any  question  of  fraud,  to  receive  the  money  and  disputing  the  right  of  the 
United  States  upon  any  ground  to  withhold  the  sum  awarded.  We  enter- 
tain no  doubt  these  rights  are  susceptible  of  judicial  determination  within 
the  meaning  of  the  adjudged  cases  relating  to  the  judicial  power  of  the 
courts  of  the  United  States  as  distinguished  from  the  powers  committed 
to  the  Executive  branch  of  the  Government.1 

But  the  case  or  controversy  contemplated  by  the  Constitution  does  not 
mean  a  moot  or  friendly  case.  It  means  one  which  has  arisen  under  law  or 
equity  and  in  which  the  parties  before  the  court  as  litigants  would,  in  primi- 
tive times,  have  settled  their  dispute  by  force;  for  the  court  is  a  substitute 
for  self-redress  of  litigants,  whether  those  litigants  are  individuals  or 
States.  It  is  of  the  utmost  importance  to  bear  in  mind  this  fact,  because 
the  judicial  power  of  the  United  States  is  limited  to  cases  involving  a  con- 
test under  law  or  equity,  of  which  the  courts  can  therefore  take  jurisdic- 
tion, and  which  it  decided,  thus  withdrawing  from  them  the  power  to  act 
in  an  advisory  capacity. 

In  the  recent  case  of  Muskrat  v.  United  States  (219  U.  S.,  346,  354), 
decided  in  1911,  the  Supreme  Court,  per  Mr.  Justice  Day,  thus  refers  to 
the  opinion  of  the  judges  of  the  Supreme  Court  taken  extra-judicially,  on 
the  question  of  their  advisory  power: 

In  1793,  by  direction  of  the  President,  Secretary  of  State  Jefferson 
addressed  to  the  Justices  of  the  Supreme  Court  a  communication  soliciting 
their  views  upon  the  question  whether  their  advice  to  the  executive  would 
be  available  in  the  solution  of  important  questions  of  the  construction  of 
treaties,  laws  of  nations  and  laws  of  the  land,  which  the  Secretary  said 
were  often  presented  under  circumstances  which  "  do  not  give  cognizance 
of  them  to  the  tribunals  of  the  country."  The  answer  to  the  question  was 
postponed  until  the  subsequent  sitting  of  the  Supreme  Court,  when  Chief 
Justice  Jay  and  his  associates  answered  to  President  Washington  that  in 
consideration  of  the  lines  of  separation  drawn  by  the  Constitution  between 
the  three  departments  of  government,  and  being  judges  of  a  court  of  last 
resort,  afforded  strong  arguments  against  the  propriety  of  extrajudicially 
deciding  the  questions  alluded  to,  and  expressing  the  view  that  the  power 
given  by  the  Constitution  to  the  President  of  calling  on  heads  of  depart- 
ments for  opinions  "  seems  to  have  been  purposely,  as  well  as  expressly, 
united  to  the  executitve  departments."  Correspondence  and  Public  Papers 
of  John  Jay,  vol.  3,  p.  486. 

xLo  Abra  Co.  v.  U.  S.,  175  U.  S.,  460-1. 


434        THE  united  states:  a  study  in  international  organization 

This  action  of  the  Justices  seems  to  have  settled  the  point,  because,  from 
that  day  to  this,  the  Supreme  Court  has  not  acted  in  an  advisory  capacity. 
We  have  also  an  adjudged  case  that  the  judicial  power  of  the  Constitution 
does  not  extend  to  a  moot  or  friendly  case,  for  in  Chicago  and  Grand  Trunk 
Railway  Co.  v.  Wellman  (143  U.  S.,  339,  344),  decided  in  1891,  the  court 
had  occasion  to  consider  this  matter.  The  Supreme  Court  of  Michigan, 
from  which  the  case  was  brought  by  writ  of  error  to  the  Supreme  Court, 
had  said,  per  Mr.  Justice  Morse: 

It  being  evident  from  the  record  that  this  was  a  friendly  suit  between 
the  plaintiff  and  the  defendant  to  test  the  constitutionality  of  this  legisla- 
tion, the  attorney  general,  when  it  was  brought  into  this  court  upon  writ 
of  error,  very  properly  interposed  and  secured  counsel  to  represent  the  pub- 
lic interest.  In  the  stipulation  of  facts  or  in  the  taking  of  testimony  in 
the  court  below  neither  the  attorney  general  nor  any  other  person  interested 
for  or  employed  in  behalf  of  the  people  of  the  State  took  any  part.  What 
difference  there  might  have  been  in  the  record  had  the  people  been  rep- 
resented in  the  court  below,  however,  under  our  view  of  the  case,  is  not 
of  material  inquiry. 

In  the  Supreme  Court  of  the  United  States,  Mr.  Justice  Brewer  refers  to 
this  fact,  and  thus  speaks  on  behalf  of  his  brethren: 

Whenever,  in  'pursuance  of  an  honest  and  actual  antagonistic  assertion 
of  rights  by  one  individual  against  another,  there  is  presented  a  question 
involving  the  validity  of  any  act  of  any  legislature,  State  or  Federal,  and 
the  decision  necessarily  rests  on  the  competency  of  the  legislature  to  so 
enact,  the  court  must,  in  the  exercise  of  its  solemn  duties,  determine  whether 
the  act  be  constitutional  or  not ;  but  such  an  exercise  of  power  is  the  ulti- 
mate and  supreme  function  of  courts.  It  is  legitimate  only  in  the  last 
resort,  and  as  a  necessity  in  the  determination  of  real,  earnest  and  vital 
controversy  between  individuals.  It  never  was  the  thought  that,  by  means 
of  a  friendly  suit,  a  party  beaten  in  the  legislature  could  transfer  to  the 
courts  an  inquiry  as  to  the  constitutionality  of  the  legislative  act.1 

1 143  U.  S.,  345. 


XXI 

JUDICIAL  POWERS  AND  THEIR  RELATION  TO  LAW 

AND  EQUITY,  TO  ADMIRALTY,  MARITIME 

AND  INTERNATIONAL  LAW 

In  appealing  to  the  common  law,  as  the  standard  of  exposition,  in  all  doubts  as  to 
the  meaning  of  written  instruments;  there  is  safety,  certainty,  and  authority.  The  institu- 
tions of  the  colonies  were  based  upon  it;  it  was  their  system  of  jurisprudence,  with  only 
local  exceptions,  to  suit  the  condition  of  the  colonists,  who  claimed  it  as  their  birth-right 
and  inheritance,  9  Cr.  333,  in  its  largest  sense,  as  including  the  whole  system  of  English 
jurisprudence,    1    Gall.    493;    the    inexhaustible    fountain    from    which    we    draw    our    laws, 

9  S.  &  R.  330,  39,  58.  So  it  continued  after  the  colonies  became  states,  in  most  of  which 
the  common  law  was  adopted  by  acts  of  assembly,  which  gave  it  the  force  of  a  statute, 
from  the  time  of  such  adoption,  and  as  it  was  then ;  so  that  in  the  language  of  this 
Court — "  At  the  adoption  of  the  constitution,  there  were  no  states  in  this  Union,  the  basis 
of  whose  jurisprudence  was  not  essentially,  that  of  the  common  law  in  its  widest  meaning; 
and  probably  no  states  were  contemplated,  in  which  it  would  not  exist."  3  Pet.  446,  8. 
It  is  also  the  basis  on  which  the  federal  system  of  jurisprudence  was  erected  by  the  con- 
stitution, the  judiciary  and  process  acts,  which  refer  to  "  cases  in  law  and  in  equity,"  "suits 
at  common  law,"  "  the  common  law,  the  principles  and  usages  of  law"  as  they  had  at  the 
time  been  defined  and  settled  in  England;  5  Cr.  222;  3  Wh.  221;  4  Wh.  115,  16;  7  Wh.  45; 

10  Wh.  29,  32,  56,  8;  1  Pet.  613:  and  were  adopted  as  then  understood  by  the  old  states. 
(Mr.  Justice  Baldwin,  A  General  View  of  the  Origin  and  Nature  of  the  Constitution 
and  Government  of  the  United  States,  1837,  pp.  3-4.) 

But  whatever  may  in  England  be  the  binding  authority  of  the  common  law  decisions 
upon  this  subject,  in  the  United  States  we  are  at  liberty  to  reexamine  the  doctrines,  and 
to  construe  the  jurisdiction  of  the  admiralty  upon  enlarged  and  liberal  principles.  The 
constitution  has  delegated  to  the  judicial  power  of  the  United  States  cognizance  "of  all 
cases  of  admiralty  and  maritime  jurisdiction;"  and  the  act  of  Congress  (24  Sept.  1789, 
ch.  20,  s.  9)  has  given  to  the  District  Court  "cognizance  of  all  civil  causes  of  admiralty 
and  maritime  jurisdiction,  including  all  seizures  tinder  laws  of  impost,  navigation  or  trade, 
of  the  United  States,  where  the  seizures  are  made  on  waters  navigable  from  the  sea  by 
vessels  of  ten  or  more  tons  burthen;  within  their  respective  districts,  as  well  as  upon  the 
high  seas."  .   .    . 

On  the  whole,  I  am,  without  the  slightest  hesitation,  ready  to  pronounce,  that  the  dele- 
gation of  cognizance  of  "  all  civil  cases  of  admiralty  and  maritime  jurisdiction "  to  the 
courts  of  the  United  States  comprehends  all  maritime  contracts,  torts,  and  injuries.  The 
latter  branch  is  necessarily  bounded  by  locality;  the  former  extends  over  all  contracts, 
(wheresoever  they  may  be  made  or  executed,  or  whatsoever  may  be  the  form  of  the 
stipulations,)  which  relate  to  the  navigation,  business  or  commerce  of  the  sea.  (Mr.  Justice 
Story,  in  De  Lovio  v.  Boit,  2  Gallison,  398,  467-468,  474-475,  decided  in  1815.) 

Judicial  power,  in  all  cases  of  admiralty  and  maritime  jurisdiction,  is  delegated  by 
the  Constitution  to  the  Federal  Government  in  general  terms,  and  courts  of  this  character 
had  then  been  established  in  all  commercial  and  maritime  nations,  differing,  however, 
materially  in  different  countries  in  the  powers  and  duties  confided  to  them;  the  extent  of 
the  jurisdiction  conferred  depending  very  much  upon  the  character  of  the  government  in 
which  they  were  created ;  and  this  circumstance,  with  the  general  terms  of  the  grant, 
rendered  it  difficult  to  define  the  exact  limits  of  its  power  in  the  United  States. 

This  difficulty  was  increased  by  the  complex  character  of  our  Government,  where 
separate  and  distinct  specified  powers  of  sovereignty  are  exercised  by  the  United  States  and  a 
State  independently  of  each  other  within  the  same  territorial  limits.  And  the  reports  of 
the  decisions  of  this  court  will  show  that  the  subject  has  often  been  before  it,  and  care- 
fully considered,  without  being  able  to  fix  with  precision  its  definite  boundaries ;  but  cer- 

435 


436         THE  united  states:  a  study  in  international  organization 

tainly  no  State  law  can  enlarge  it,  nor  can  an  act  of  Congress  or  rule  of  court  make  it 
broader  than  the  judicial  power  may  determine  to  be  its  true  limits.  And  tins  boundary 
is  to  be  ascertained  by  a  reasonable  and  just  construction  of  the  words  used  in  the 
Constitution,  taken  in  connection  with  the  whole  instrument,  and  the  purposes  tor  which 
admiralty  and  maritime  jurisdiction  was  granted  to  the  Federal  Government.  (Mr.  Chief 
Justus  Taney,  in  The  Steamer  St.  Laurence,  i  Black,  522,  526-52;,  decided  in  1S61.) 

Guided  by  these  sound  principles,  this  court  has  felt  itself  at  liberty  to  recognize  the 
admiralty  jurisdiction  as  extending  to  localities  and  subjects  which,  by  the  jealousy  of  the 
common  law,  were  prohibited  to  it  in  England,  but  which  fairly  belong  to  it  on  every 
ground  of  reason  when  applied  to  the  peculiar  circumstances  of  this  country,  with  its 
extended  territories,  its  inland  seas,  and  its  navigable  rivers,  especiallly  as  the  narrow 
restrictions  of  the  English  law  had  never  prevailed  on  this  side  of  the  Atlantic,  even  in 
colonial  times.  (Mr.  Justice  Bradley  in  The  Lottawanna,  21  Wallace,  55S,  576,  decided  in 
1874.) 

From  all  that  has  been  said,  these  things  would  seem  to  be  clear :  First,  that  the  maritime 
law,  existing  as  it  does  by  the  common  consent  of  nations,  and,  being  a  general  law, 
cannot  be  changed  or  modified  as  to  its  general  operation  by  any  particular  sovereignty ; 
second,  that  it  has  force  in  any  country  only  by  its  adoption,  express  or  implied,  by  that 
country,  and  may  be  modified  in  its  special  operation  in  that  jurisdiction  at  the  will  of 
that  special  sovereignty;  third,  that  it  is  by  such  adoption  part  of  the  federal  law  of  the 
United  States,  and  incapable  of  modification  by  state  enactment, — Congress  having  ex- 
clusive power,  under  the  constitution,  "to  regulate  commerce  with  foreign  nations,  and 
among  the  several  states,  and  with  the  Indian  tribes;  and  the  judicial  power  of  the 
United  States,  "exclusive  of  the  state  courts,"  extending  "to  all  cases  of  admiralty  and 
maritime  jurisdiction."  {Hughes,  Circuit  Judge,  in  The  Manha-sset,  18  Federal  Reporter, 
918,  922,  decided  1884.) 

Now  besides  that  law  which  simply  concerneth  men  as  men,  and  that  which  belongeth 
unto  them  as  they  are  men  linked  with  others  in  some  form  of  politic  society,  there  is 
a  third  kind  of  law  which  toucheth  all  such  several  bodies  politic,  so  far  forth  as  one 
of  them  hath  public  commerce  with  another.  And  this  third  is  the  Law  of  Nations. 
(Richard  Hooker,  Of  the  Laws  of  Ecclesiastical  Polity,  1594,  Church  edition,  1868,  Book  J, 
Section  10,  p.  64.) 

I  remember  in  a  case  before  Lord  Talbot,  of  Buvot  v.  Barbut,  (1736)  .  .  .  Lord 
Talbot  declared  a  clear  opinion — "  That  the  law  of  nations,  in  its  full  extent  was  part  of 
the  law  of  England "—"  That  the  Act  of  Parliament  was  declaratory;  and  occasioned  by 
a  particular  incident." — "  That  the  law  of  nations  was  to  be  collected  from  the  practice  of 
different  nations,  and  the  authority  of  writers."  Accordingly,  he  argued  and  determined 
from  such  instances,  and  the  authority  of  Grotius,  Barbeyrac,  Binkershoek,  Wiquefort,  &c. 
there  being  no  English  writer  of  eminence,  upon  the  subject. 

I  was  counsel  in  this  case;  and  have  a  full  note  of  it.  (Lord  Chief  Justice  Mansfield 
in  Triquet  v  Path,  3  Burrow,  1478,  1480-1481,  decided  in  1764,  English  Reports,  Full  Re- 
print .  Vol.  XCVII,  King's  Bench  Division,  XXVI,  1909,  pp-  937-938-) 

The  Law  of  Nations,  founded  upon  Justice,  Equity,  Convenience,  and  the  Reason  of  the 

Thing,  and  confirmed  by  long  Usage,   .    .    .    (Report  of  the  law  officers  of  the  Crown,  dated 

January  18,  1753,  signed  Ceo.  Lee,  G.  Paul,  D.  Ryder,  IV.  Murray  [Lord  Mansfield,  to  whom 

definition  is  commonly  attributed],  printed  in  Sir  Ernest  Satow,  The  Silcsian  Loan  ami 

Frederick  the  Great,  1915,  p.  82.) 

The  law  of  nations  is  a  system  of  rules,  deducible  by  natural  reason,  and  established  bv 
universal  consent  among  the  civilized  inhabitants  of  the  world;  in  order  to  decide  all 
disputes,  to  regulate  all  ceremonies  and  civilities,  and  to  insure  the  observance  of  justice 
and  good  faith,  in  that  intercourse  which  must  frequently  occur  between  two  or  more 
independent  states,  and  the  individuals  belonging  to  each.  This  general  law  is  founded 
upon  this  principle,  that  different  nations  ought  in  time  of  peace  to  do  one  another  all 
the  good  they  can;  and,  in  time  of  war,  as  little  harm  as  possible,  without  prejudice  to 
their  own  real  interests.  And,  as  none  of  these  states  will  allow  a  superiority  in  the  other, 
therefore  neither  can  dictate  or  prescribe  the  rules  of  this  law  to  the  rest:  but  such  rules 
must  necessarily  result  from  those  principles  of  natural  justice,  in  which  all  the  learned 
of  every  nation  agree;  or  they  depend  upon  mutual  compacts  or  treaties  between  the 
respective  communities;  in  the  construction  of  which  there  is  also  no  judge  to  resort  to, 


JUDICIAL    POWERS   AND   THEIR    RELATION    TO   LAW  437 

but  the  law  of  nature  and  reason,  being  the  only-  one  in  which  all  the  contracting  parties 
are  equally  conversant,  and  to  which  they  are  equally  subject. 

In  arbitrary  states  this  law,  wherever  it  contradicts  or  is  not  provided  for  by  the  municipal 
law  of  the  country,  is  enforced  bv  the  roval  power:  but  since  in  England  no  royal  power 
can  introduce  a  new  law,  or  suspend  the  execution  of  the  old,  therefore  the  law  of  nations 
(wherever  any  question  arises  which  is  properly  the  object  of  it's  jurisdiction)  is  here 
adopted  in  its  full  extent  by  the  common  law,  and  is  held  to  be  a  part  of  the  law  of  the 
land.  And  those  acts  of  parliament,  which  have  from  time  to  time  been  made  to  enforce 
this  universal  law,  or  to  facilitate  the  execution  of  it's  decisions,  are  not  to  be  considered 
as  introductive  of  any  new  rule,  but  merely  as  declaratory  of  the  old  fundamental  consti- 
tutions of  the  kingdom;  without  which  it  must  cease  to  be  a  part  of  the  civilized  world. 
'Sir  William  Blackstone,  Commentaries  on  the  Laws  of  England,  Book  IV,  1769,  eh. 
5,  pp.  66-67.) 

It  has  also  been  observed,  that  an  act  of  congress  ought  never  to  be  construed  to  violate 
the  law  of  nations,  if  any  other  possible  construction  remains,  and  consequently,  can  never 
be  construed  to  violate  neutral  rights,  or  to  affect  neutral  commerce,  further  than  is  war- 
ranted by  the  law  of  nations  as  understood  in  this  country.  These  principles  are  believed 
to  be  correct,  and  they  ought  to  be  kept  in  view,  in  construing  the  act  now  under  consid- 
eration. (Chief  Justice  Marshall,  in  The  Charming  Betsy,  2  Cranch,  64,  118,  decided  in 
1804.) 

Until  such  an  act  be  passed,  the  court  is  bound  by  the  law  of  nations,  which  is  a  part 
of  the  law  of  the  land.  {Chief  Justice  Marshall  in  The  Nereide,  9  Cranch,  388,  423,  decided 
in  1815.) 

The  law  of  nations  is  the  great  source  from  which  we  derive  those  rules,  respecting 
belligerent  and  neutral  rights,  which  are  recognized  by  all  civilized  and  commercial  states 
throughout  Europe  and  America.  This  law  is  in  part  unwritten,  and  in  part  conven- 
tional. To  ascertain  that  which  is  unwritten,  we  resort  to  the  great  principles  of  reason 
and  justice:  but  as  these  principles  will  be  differently  understood  by  different  nations, 
under  different  circumstances,  we  consider  them  as  being,  in  some  degree,  fixed  and 
rendered  stable  by  a  series  of  judicial  decisions  The  decisions  of  the  courts  of  every 
country,  so  far  as  they  are  founded  upon  a  law  common  to  every  country,  will  be  received, 
not  as  authority,  but  with  respect.  The  decisions  of  the  courts  of  every  country  show 
how  the  law  of  nations,  in  the  given  case,  is  understood  in  that  country,  and  will  be 
considered  in  adopting  the  rule  which  is  to  prevail  in  this. 

Without  taking  a  comparative  view  of  the  justice  or  fairness  of  the  rules  established 
in  the  British  courts,  and  of  those  established  in  the  courts  of  other  nations,  there  are 
circumstances  not  to  be  excluded  from  consideration,  which  give  to  those  rules  a  claim 
to  our  attention  that  we  cannot  entirely  disregard.  The  United  States  having,  at  one 
time,  formed  a  component  part  of  the  British  empire,  their  prize  law  was  our  prize  law. 
When  we  separated,  it  continued  to  be  our  prize  law,  so  far  as  it  was  adapted  to  our 
circumstances,  and  was  not  varied  by  the  power  which  was  capable  of  changing  it.  (Chief 
Justice  Marshall,  in  Thirty  Hogsheads  of  Sugar  v.  Boyle,  9  Cranch,  191,  198,  decided  in 
181 5) 

International  law  is  part  of  our  law,  and  must  be  ascertained  and  administered  by  the 
courts  of  justice  of  appropriate  jurisdiction,  as  often  as  questions  of  right  depending  upon 
it  are  duly  presented  for  their  determination.  For  this  purpose,  where  there  is  no  treaty, 
and  no  controlling  executive  or  legislative  act  or  judicial  decision,  resort  must  be  had  to 
the  customs  and  usages  of  civilized  nations:  and,  as  evidence  of  these,  to  the  works  of 
jurists  and  commentators,  who  by  years  of  labor,  research  and  experience,  have  made 
themselves  peculiarly  well  acquainted  with  the  subjects  of  which  they  treat.  Such  works 
are  resorted  to  by  judicial  tribunals,  not  for  the  speculations  of  their  authors  concerning 
what  the  law  ought  to  be,  but  for  trustworthy  evidence  of  what  the  law  really  is.  (Mr. 
Justice  Gray,  in  The  Paquete  Habana,  175  United  States  Reports,  677,  700,  decided  in 
1900.) 


CHAPTER  XXI 

JUDICIAL  POWERS  AND  THEIR  RELATION  TO  LAW  AND  EQUITY,  TO  ADMIRALTY, 
MARITIME  AND  INTERNATIONAL   LAW 


Definition 
of  "  Law  " 
and  "  Equity  ' 


Influence 
of   English 
Terminology 


It  will  be  observed  that  the  judicial  power  under  the  Constitution  does 
not  extend  to  all  cases ;  but  to  cases  of  law  and  equity.  The  question  arises 
as  to  the  meaning  to  be  attached  to  law  and  equity  in  this  connection,  as 
they  affect  the  nature  and  extent  of  the  case,  to  which  alone  it  is  to  extend. 
The  importance  of  precision  in  this  matter  and  the  consequences  that  would 
flow  from  a  misconception,  have  never  been  better  stated  by  the  great'  Chief 
Justice  from  the  bench  than  they  were  by  him  upon  the  floor  of  the  House 
of  Representatives  in  his  speech  on  the  Robbins  case,  delivered  in  1800.  In 
the  course  of  a  debate,  to  which  the  extradition  of  Jonathan  Robbins  gave 
rise,  Representative  Marshall  said : 

A  case  in  law  or  equity  was  a  term  well  understood,  and  of  limited  sig- 
nification. It  was  a  controversy  between  parties  which  had  taken  a  shape 
for  judicial  decision.  If  the  Judicial  power  extended  to  every  question 
under  the  Constitution,  it  would  involve  almost  every  subject  proper  for 
Legislative  discussion  and  decision;  if,  to  every  question  under  the  laws 
and  treaties  of  the  United  States,  it  would  involve  almost  every  subject 
on  which  the  Executive  could  act.  The  division  of  power  which  the 
gentleman  had  stated,  could  exist  no  longer,  and  the  other  departments 
would  be  swallowed  up  by  the  Judiciary.  .  .  .  By  extending  the  Judicial 
power  to  all  cases  in  law  and  equity,  the  Constitution  had  never  been  under- 
stood to  confer  on  that  department  any  political  power  whatever.  To  come 
within  this  description,  a  question  must  assume  a  legal  form  for  forensic 
litigation  and  judicial  decision.  There  must  be  parties  to  come  into  court, 
who  can  be  reached  by  its  process,  and  bound  by  its  power ;  whose  rights 
admit  of  ultimate  decision  by  a  tribunal  to  which  they  are  bound  to  submit.1 

It  is  common  knowledge  that  technical  terms  employed  in  the  Constitu- 
tion are  to  be  taken  in  the  sense  in  which  they  were  understood  in  English 
jurisprudence;  because  the  law  of  England,  no  less  assuredly  than  the  lan- 
guage of  England,  in  which  the  laws  were  expressed,  accompanied  the 
colonist  as  a  matter  of  course.  We  have  good  authority  for  the  assertion 
that  the  law  of  England  was  a  favorite  study  of  his  successors,  and  that 
they  were  familiar  with  its  principles.     In  Edmund  Burke's  speech  on  con- 


1  Annals  of  Congress,  Vol.  10,  p.  606. 


Session  of  March  7,  1800. 
438 


JUDICIAL  POWERS  AND   THEIR  RELATION   TO  LAW 


439 


ciliation  with  America,  delivered  in  the  House  of  Commons  on  March  22, 
1775,  that  great  statesman  and  friend  of  the  colonies  said: 

In  no  country  perhaps  in  the  world  is  the  law  so  general  a  study.  The 
profession  itself  is  numerous  and  powerful ;  and  in  most  provinces  it  takes 
the  lead.  The  greater  number  of  the  deputies  sent  to  the  congress  were 
lawyers.  But  all  who  read,  and  most  do  read,  endeavor  to  obtain  some 
smattering  in  that  science.  I  have  been  told  by  an  eminent  bookseller,  that 
in  no  branch  of  his  business,  after  tracts  of  popular  devotion,  were  so  many 
books  as  those  on  the  law  exported  to  the  plantations.  The  colonists  have 
now  fallen  into  the  way  of  printing  them  for  their  own  use.  I  hear  that 
they  have  sold  nearly  as  many  of  Blackstone's  Commentaries  in  America 
as  in  England.1 

It  is  therefore  to  be  expected  that,  when  terms  of  municipal  law  are   ^l01"'0116 
found  in  the  Constitution,  they  are  to  be  understood  in  the  sense  in  which   Vattel 
they  were  used  in  Blackstone's  Commentaries ;  and,  when  the  law  of  nations 
is  referred  to,  that  its  principles  are  to  be  understood  in  the  sense  in  which 
Vattel  defined  them. 

On  August  22,  1787,  the  question  of  an  ex  post  facto  law  was  before  the 
Federal  Convention,  and  there  appearing  to  be  some  confusion  as  to  its  exact 
meaning,  Mr.  Madison  reports  in  his  notes  that  a  week  later  "  Mr.  Dick- 
enson mentioned  to  the  House  that  on  examining  Blackstone's  Com- 
mentaries, he  found  that  the  terms  '  ex  post  facto  '  related  to  criminal  cases 
only."  2  And  in  Blackstone's  sense  the  phrase  is  to  be  construed,  as  appears 
from  the  leading  case  of  Caldcr  v.  Bull,  (3  Dallas,  386),  decided  in  1798. 

We  have  it  on  equally  good  authority  that  the  colonists  were  not  only   international 
interested  in  and  familiar  with  municipal  law,  which  they  would  prefer  to   Common 

1  J  L  Law  of 

call  the  common  law  of  England,  but  that  they  regarded  as  indispensable,   Nations 
a  knowledge  of  international  law,  which  they  would  have  called  the  law  of 
nations,  and  which  could  with  propriety  be  termed   the  common  law   of 
nations.     In   a  letter  dated   Philadelphia,   December   19,    1775,   written  to 
Charles  W.  F.  Dumas,  at  The  Hague,  the  venerable  Dr.  Franklin  said  : 

I  am  much  obliged  by  the  kind  present  you  have  made  us  of  your  edi- 
tion of  Vattel.3  It  came  to  us  in  good  season,  when  the  circumstances  of  a 
rising  State  make  it  necessary  frequently  to  consult  the  Law  of  Nations. 

1  The  Works  of  Edmund  Burke.  Boston,  1839,  Vol.  II,  p.  36. 

'  Documentary  History  of  the  Constitution,  Vol.   Ill,  p.  636.     Session  of  August  29,  1787. 

"The  original  edition  of  Vattel's  "Law  of  Nations."  in  two  quarto  volumes,  was  printed 
at  Neuchatel  in  1758,  and  part  of  the  edition  bears  the  imprint  of  I.eyden  and  of  London. 
An  edition  in  three  volumes,  12  mo.  appeared  in  the  same  year.  The  title  which  Vattel 
gave  to  his  work  was  he  droit  des  gens,  on  principes  de  la  lt>i  naturelle,  appliques  a  la 
eonduitc  ct  au.r  affaires  des  nations  et  des  souverains.  The  edition  for  which  Mr.  Pumas 
was  responsible  appeared  in  Amsterdam  in  1775,  reproducing  the  original  title  with  the 
addition  of  the  following  phrases:  Nouvelle  edition  augmentee,  revue  et  corrigee.  Az'ec 
quelqucs  remarques  de  I'cditeur. 


Equity 


440  THE    UNITED    STATES:   A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Accordingly,  that  copy  which  I  kept  (after  depositing  one  in  our  own  pub- 
lic library  here,  and  sending  the  other  to  the  College  of  Massachusetts 
Bay,  as  you  directed)  has  been  continually  in  the  hands  of  the  members 
of  our  Congress  now  sitting,  who  are  much  pleased  with  your  notes  and 
preface,  and  have  entertained  a  high  and  just  esteem  for  their  author.1 

As  to  the  common  law  of  nations,  we  thus  have  Dr.  Franklin's  authority 
for  the  statement  that  the  members  of  the  Continental  Congress  referred  to 
and  accepted  Vattel's  famous  treatise,  as  the  measure  and  standard  of  the 
duties  of  the  colonies,  soon  to  become  free  and  independent  States.2  We  could, 
however,  dispense  with  his  authority,  inasmuch  as  the  common  law  of  nations 
was  then  regarded  as  an  intricate  part  of  the  common  law  of  England,  and 
adopted  as  a  system  by  the  adoption  of  the  common  law.  For  does  not 
Blackstone  inform  us,  in  his  Commentaries,  that  "  the  law  of  nations  (when- 
ever any  question  arises  which  is  properly  the  object  of  its  jurisdiction)  is 
hereby  adopted  in  its  full  extent  by  the  common  lavy,  and  is  held  to  be  a 
part  of  the  law  of  the  land."  3 
Law  and  Let  us  now  consider  the  phrase  "  law  and  equity,"  and  determine  the 

sense  in  which  those  terms  were  understood  by  the  framers  of  the  Constitu- 
tion, and  therefore  are  to  be  understood  in  the  Constitution  itself. 

In  the  first  place,  it  will  be  well  to  cite  an  authority  to  the  effect  that 
terms  of  art  are  to  be  accepted  in  the  sense  in  which  they  were  used  in  that 
system  of  law  in  which  the  framers  of  the  Constitution  were  educated,  and 
from  which  they  borrowed.  Of  the  many  cases  which  might  be  cited  for 
this  purpose,  that  of  Robinson  v.  Campbell,  (3  Wheaton,  212,  221-3),  decided 
in  1818,  will  suffice.  In  speaking  for  a  unanimous  court,  of  which  Messrs. 
Marshall  and  Story  were  members,  Mr.  Justice  Todd  said : 

By  the  laws  of  the  United  States,  the  circuit  courts  have  cognizance  of  all 
suits  of  a  civil  nature,  at  common  law  and  in  equity,  in  cases  which  fall 
within  the  limits  prescribed  by  those  laws.  By  the  34th  section  of  the 
judiciary  act  of  1789,  it  is  provided,  that  the  laws  of  the  several  states, 
except  where  the  constitution,  treaties  or  statutes  of  the  United  States 
shall  otherwise  require  or  provide,  shall  be  regarded  as  rules  of  decision, 

1  Francis  Wharton,  Diplomatic  Correspondence  of  the  American  Revolution,  1889,  Vol. 
ii,  p.  64. 

2  It  is  interesting  to  note  that  in  the  debates  of  the  Federal  Convention,  Luther  Martin, 
delegate  from  Maryland,  invoked  Vattel's  authority  "  in  order  to  prove  that  individuals 
in  a  State  of  nature  are  equally  free  &  independent."  and  he  vouched  the  same  great 
authority  "  to  prove  that  the  case  is  the  same  with  States  till  they  surrender  their  sov- 
ereignty." (Madison's  Notes.  Documentary  History,  Vol.  iii,  p.  225.  Session  of 
June  27th.) 

"  The  question  of  distinction  between  suits  of  a  civil  nature  and  suits  coming  properly 
under  the  law  of  nations  was  raised  in  In  Re  Baiz  (135  U.  S.,  403),  decided  in  1890. 
Although  the  petitioner  claimed  to  be  a  public  minister  representing  a  foreign  country.  Mr. 
Chief  Justice  Fuller  concluded  that  the  District  Court  had  jurisdiction,  and  denied  the 
writs.  For  opinions  in  analogous  cases,  see  J.  B.  Scott,  Judicial  Settlement  of  Contro- 
versies Betuven  States,  Vol.  i,  p.  388,  Xote. 


JUDICIAL  POWERS  AND  THEIR  RELATION   TO  LAW  441 

in  trials  at  common  law,  in  the  courts  of  the  United  States,  in  cases  where 
they  apply.  The  act  of  May,  1792,  confirms  the  modes  of  proceeding  then 
used  in  suits  at  common  law,  in  the  courts  of  the  United  States,  and 
declares,  that  the  modes  of  proceeding  in  suits  of  equity,  shall  be  "  accord- 
ing to  the  principles,  rules  and  usages  which  belong  to  courts  of  equity,  as 
contradistinguished  from  courts  of  common  law,"  except  so  far  as  may 
have  been  provided  for  by  the  act  to  establish  the  judicial  courts  of  the 
United  States. 

After  a  brief  discussion  of  this  question,  the  learned  Justice  continued 
and  concluded : 

The  court,  therefore,  think,  that  to  effectuate  the  purposes  of  the  legis- 
lature, the  remedies  in  the  courts  of  the  United  States  are  to  be,  at  common 
law  or  in  equity,  not  according  to  the  practice  of  state  courts,  but  accord- 
ing to  the  principles  of  common  law  and  equity,  as  distinguished  and 
denned  in  that  country  from  which  we  derive  our  knowledge  of  those 
principles. 

Accepting  as  we  needs  must,  that  by  law,  common  law  is  meant,  and  by 
equity,  the  practice  in  chancery,  we  are  obliged  to  probe  beneath  the  sur- 
face, in  order  to  ascertain  the  meaning  to  be  assigned  to  these  terms.  In 
the  first  place,  we  must  bear  in  mind  that  the  United  States,  meaning  thereby 
the  more  perfect  union  of  the  States,  was  a  creation  of  the  States  meeting 
in  conference  at  Philadelphia,  and  that  the  Union  only  possessed  the  powers 
expressly  or  impliedly  granted  by  the  delegates  of  the  States  and  ratified 
by  the  State  conventions.  It  was,  therefore,  a  union  without  government 
and  without  law,  except  as  government  and  law  were  provided  by  the  Con- 
stitution and  legislature  in  accordance  with  its  terms.  Each  State  had  its 
government  and  had  its  law.  The  law  of  each  State  was  common  law 
and  equity,  although  separate  and  distinct  courts  for  the  administration  of 
the  latter  system  did  not  exist  in  all  the  States. 

In  defining  law  in  terms  of  common  law,  the  law  of  crimes  as  well  as   Common 
the    law    in    civil    disputes   might   have    been    adopted.      It    was    for    some   Limited  to 

.  Civil  Cases 

years  supposed  by  such  men  as  Chief  Justice  Jay  and  Chief  Justice  Ells- 
worth, that  the  common  law  adopted  included  the  law  of  crimes.  These 
views,  however,  are  expressly  repudiated  by  the  Supreme  Court  in  United 
States  v.  Hudson  (7  Cranch  32,  33),  decided  in  1812,  in  which  the  court 
was  called  upon  to  determine  "  whether  the  circuit  courts  of  the  United 
States  can  exercise  a  common-law  jurisdiction  in  criminal  cases."  In  deliv- 
ering the  opinion  of  the  court,  Mr.  Justice  Johnson  said  that  public  opinion 
had  long  since  decided  the  question,  although  it  was  now  presented  to  the 
court  for  the  first  time.  "  The  course  of  reasoning  which  leads  to  this  con- 
clusion," he  continued,  "  is  simple,  obvious,  and  admits  of  but  little  illustra- 


442 


THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


from  the  several  states  —  whatever  is  not  expressly  given  to  the  former, 
the  latter  expressly  reserve.  The  judicial  power  of  the  United  States  is 
a  constituent  part  of  those  concessions;  that  power  is  to  be  exercised  by 
Courts  organized  for  the  purpose,  and  brought  into  existence  by  an  effort 
of  the  legislative  power  of  the  Union."  The  question  was  not  whether  the 
courts  could  exercise  jurisdiction  in  matters  of  crimes,  but  whether  it  had 
been  conferred,  as  the  court  could  not  act  without  law.  To  the  contention 
that  such  jurisdiction  would  be  implied,  Mr.  Justice  Johnson  thus  replied : 


Common 
Law 

Applicable 
in  Cases 
Covered  by 
Special 
Legislative 
Act 


The  only  ground  on  which  it  has  ever  been  contended  that  this  jurisdiction 
could  be  maintained  is,  that,  upon  the  formation  of  any  political  body,  an 
implied  power  to  preserve  its  own  existence  and  promote  the  end  and  object 
of  its  creation,  necessarily  results  to  it.  But,  without  examining  how  far 
this  consideration  is  applicable  to  the  peculiar  character  of  our  constitu- 
tion, it  may  be  remarked,  that  it  is  a  principle  by  no  means  peculiar  to  the 
common  law.  It  is  coeval,  probably,  with  the  first  formation  of  a  limited 
Government ;  belongs  to  a  system  of  universal  law,  and  may  as  well  support 
the  assumption  of  many  other  powers  as  those  more  peculiarly  acknowl- 
edged by  the  common  law  of  England. 

But  if  admitted  as  applicable  to  the  state  of  things  in  this  country,  the 
consequence  would  not  result  from  it  which  is  here  contended  for.  If  it 
may  communicate  certain  implied  powers  to  the  general  Government,  it 
would  not  follow,  that  the  Courts  of  that  Government  are  vested  with  juris- 
diction over  any  particular  act  done  by  an  individual,  in  supposed  violation 
of  the  peace  and  dignity  of  the  sovereign  power.  The  legislative  authority 
of  the  Union  must  first  make  an  act  a  crime,  affix  a  punishment  to  it,  and 
declare  the  Court  that  shall  have  jurisdiction  of  the  offence.1 


Interpretation 
of  Terms 


Such  was  the  law  as  declared  by  the  Supreme  Court  in  1812;  and  such 
is  the  law  today,  by  virtue  whereof  such  criminal  jurisdiction  as  federal 
courts  exercise  has  been  created  by  Act  of  Congress  making  an  act  a  crime, 
affixing  a  punishment  to  it,  and  specifying  the  court  in  which  the  offense 
shall  be  tried. 

It  had  previously  been  suggested  by  Mr.  Justice  Iredell,  in  Chisholm  v. 
Georgia,  (2  Dallas,  419,  432),  decided  in  1792,  that  criminal  cases  were 
not  included  among  the  controversies  between  States  to  be  passed  upon  by 
the  Supreme  Court.  But  it  is  equally  well  settled  that  technical  expressions, 
terms,  and  phrases  to  be  found  in  the  Acts  of  Congress  dealing  with  crimes 
are  to  be  interpreted  in  the  sense  in  which  they  were  understood  and  used  in 
the  jurisprudence  of  the  mother  country. 

In  the  case  of  Kepncr  v.  United  States,  (195  U.  S.,  100),  decided  in 
1904,  the  Supreme  Court  had  occasion  to  pass  upon  the  clause  "  that  no  per- 
son shall   be  put  twice   in   jeopardy   for  the  same  offence "   contained   in 

1  United  Stales  v.  Hudson  and  Goodivin,  7  Cranch,  33-4. 


JUDICIAL    POWERS    AND   THEIR    RELATION    TO    LAW  443 

instructions  to  the  Philippine  Commission,  drafted  by  a  great  Secretary  of 
War,  statesman  and  lawyer  alike,1  by  virtue  whereof  the  dependencies  of  the 
United  States  separated  on  the  west  by  an  ocean  from  the  continent,  were 
secured  in  life,  liberty  and  property,  which  the  British  colonies  in  America, 
separated  from  the  mother  country  by  an  eastern  ocean,  were  denied  by 
lawyers  who  were  not  statesmen. 

Mr.  Justice  Day,  after  a  careful  reference  to  the  authorities,  said : 

In  ascertaining  the  meaning  of  the  phrase  taken  from  the  Bill  of  Rights 
[for  such  the  Amendments  to  the  Constitution  are  frequently  called]  it 
must  be  construed  with  reference  to  the  common  law  from  which  it  was 
taken.2 

And  in  another  portion  of  his  judgment,  he  laid  down"  a  rule  of  interpreta- 
tion and  of  construction  which  may  be  quoted  in  this  connection,  saying: 

How  can  it  be  successfully  maintained  that  these  expressions  of  funda- 
mental rights,  which  have  been  the  subject  of  frequent  adjudication  in  the 
courts  of  this  country,  and  the  maintenance  of  which  has  been  ever  deemed 
essential  to  our  Government,  could  be  used  by  Congress  in  any  other  sense 
than  that  which  has  been  placed  upon  them  in  construing  the  instrument 
from  which  they  were  taken? 

It  is  a  well-settled  rule  of  construction  that  language  used  in  a  statute 
which  has  a  settled  and  well-known  meaning,  sanctioned  by  judicial  de- 
cision, is  presumed  to  be  used  in  that  sense  by  the  legislative  body.3 

In  support  of  this  contention,  and  with  more  special  reference  to  what  may 
be  called  the  civil  side  of  the  common  law,  other  cases  of  the  Supreme  Court 
may  be  invoked.  Thus,  in  Smith  v.  Alabama,  (124  U.  S.,  465,  478-9),  de- 
cided in  1888,  Mr.  Justice  Matthews,  speaking  for  a  unanimous  court,  said: 

There  is  no  common  law  of  the  United  States,  in  the  sense  of  a  national 
customary  law,  distinct  from  the  common  law  of  England  as  adopted  by 
the  several  States  each  for  itself,  applied  as  its  local  law,  and  subject  to 
such  alteration  as  may  be  provided  by  its  own  statutes.   .    .    . 

There  is,  however,  one  clear  exception  to  the  statement  that  there  is  no 
national  common  law.  The  interpretation  of  the  Constitution  of  the  United 
States  is  necessarily  influenced  by  the  fact  that  its  provisions  are  framed 
in  the  language  of  the  English  common  law,  and  are  to  be  read  in  the  light 
of  its  history.  The  code  of  constitutional  and  statutory  construction  which, 
therefore,  is  gradually  formed  by  the  judgments  of  this  court,  in  the  applica- 
tion of  the  Constitution  and  the  laws  and  treaties  made  in  pursuance  thereof, 
has  for  its  basis  so  much  of  the  common  law  as  may  be  implied  in  the 
subject,  and  constitutes  a  common  law  resting  on  national  authority. 

1  See  Secretary  Root's  Instructions  to  the  Philippine  Commission,  Report  of  the  Secre- 
tary of  War  for  1900,  pp.  72,  et  scq.,  reprinted  in  Elihu  Root,  Military  and  Colonial  Policy 
of  the  United  States,  pp   287,  et  seq. 

'  Kepner  v.  U.  S.,  195  U.  S.,  125. 

'Ibid.,  124. 


444  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

In  support  of  these  views,  Mr.  Justice  Matthews  refers  to  Moore  v.  United 
States  (91  U.  S.,  270,  273-4),  decided  in  1875,  in  which  Mr.  Justice  Bradley, 
speaking  for  a  unanimous  court,  had  said : 

The  question  is,  By  what  law  is  the  Court  of  Claims  to  be  governed  in 
this  respect?  May  it  adopt  its  own  rules  of  evidence?  or  is  it  to  be  gov- 
erned by  some  system  of  law?  In  our  opinion,  it  must  be  governed  by 
law ;  and  we  know  of  no  system  of  law  by  which  it  should  be  governed 
other  than  the  common  law.  That  is  the  system  from  which  our  judicial 
ideas  and  legal  definitions  are  derived.  The  language  of  the  Constitution 
and  of  many  acts  of  Congress  could  not  be  understood  without  reference 
to  the  common  law. 

In  the  later  case  of  United  States  v.  Wong  Kim  Ark  (169  U.  S.,  649, 
654),  decided  in  1898,  Mr.  Justice  Gray,  who  may  properly  be  called  the 
very  learned  Justice,  speaking  for  the  court,  said : 

The  Constitution  nowhere  defines  the  meaning  of  these  words,  either  by 
way  of  inclusion  or  of  exclusion,  except  in  so  far  as  this  is  done  by  the 
affirmative  declaration  that  "  all  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States."  In  this,  as  in  other  respects,  it  must  be  interpreted  in  the  light  of 
the  common  law,  the  principles  and  history  of  which  were  familiarly  known 
to  the  framers  of  the  Constitution.  Minor  v.  Happersett,  21  Wall.  162; 
Ex  parte  Wilson,  114  U.  S.  417,  422;  Boyd  v.  United  States,  116  U.  S.  616, 
624,  625;  Smith  v.  Alabama,  124,  U.  S.  465.  The  language  of  the  Con- 
stitution, as  has  been  well  said,  could  not  be  understood  without  reference 
to  the  common  law.  1  Kent  Com.  336;  Bradley,  J.,  in  Moore  v.  United 
States,  91   U.  S.  270,  274. 

But  common  law  in  its  criminal  and  civil  sense,  and  equity,  existed  in  the 
colonies  forming  the  thirteen  States.  Common  law  and  equity  exist  in  the 
States  formed  since  the  creation  of  the  more  perfect  union.  It  will  there- 
fore be  well  to  consider  these  matters  very  briefly,  before  further  considering 
the  nature  and  content  of  the  law  in  the  sense  of  the  Constitution. 

In  the  very  interesting  and  instructive  case  of  Ohio  v.  Lafferty,  (Tap- 
pan's  Ohio  Reports,  81)  decided  in  1817,  Mr.  Justice  Tappan,  speaking  for 
the  court  of  Common  Pleas  of  the  State  of  Ohio,  had  occasion  to  consider 
whether  the  common  law  was  the  rule  of  decision  in  that  State.  In  the 
course  of  his  opinion,  he  thus  referred  to  the  Act  of  the  Congress  of  the 
United  States,  commonly  called  the  Northwest  Ordinance,  passed  July  13, 
1787,  during  the  very  session  of  the  Federal  Convention  of  that  year  in 
Philadelphia,  which  made  the  Constitution  of  the  more  perfect  union: 

The  ordinance  passed  by  the  congress  of  the  United  States,  on  the  13th 
of  July  1787,  "  for  the  government  of  the  territory  of  the  United  States 


JUDICIAL  POWERS  AND  THEIR  RELATION  TO  LAW  445 

North  West  of  the  river  Ohio,"  is  the  earliest  of  our  written  laws.  Pos- 
sessing the  North  Western  Territory  in  absolute  sovereignty,  the  United 
States,  by  that  instrument,  provide  for  the  temporary  government  of  the 
people  who  may  settle  there ;  and,  to  use  the  language  of  that  instrument, 
"  for  extending  the  fundamental  principles  of  civil  and  religious  liberty, 
which  form  the  basis  whereon  these  republics,  their  laws  and  constitutions, 
are  erected;  to  fix  and  establish  those  principles  as  the  basis  of  all  laws, 
constitutions  and  governments,  which  forever  hereafter  shall  be  formed  in 
the  said  territory;  to  provide  also  for  the  establishment  of  states  and  perma- 
nent government  therein ;  and  for  their  admission  to  a  share  in  the  federal 
councils,  on  an  equal  footing  with  the  original  states,  at  as  early  periods  as 
may  be  consistent  with  the  general  interest,"  it  was  ordained  and  declared, 
"  that  the  inhabitants  of  the  said  territory  shall  always  be  entitled  to  the 
benefits  of  the  writ  of  habeas  corpus,  and  of  the  trial  by  jury ;  of  a  pro- 
portionate representation  of  the  people  in  the  legislature,  and  of  judicial  pro- 
ceedings according  to  the  coarse  of  the  common  laiv"  —  as  one  of  the 
articles  of  compact  between  the  original  states,  and  the  people  and  states  in 
the  said  territory,  to  remain  forever  unalterable  unless  by  common  consent.1 

In  a  previous  portion  of  his  opinion  the  learned  judge  had  referred  to  the 
common  law  as  obtaining  in  the  colonies,  saying  of  the  colonists  that: 

In  their  charters  from  the  crown,  they  were  careful  to  have  it  recog- 
nized as  the  foundation  on  which  they  were  to  erect  their  laws  and  gov- 
ernments ;  not  more  anxious  was  ^Eneas  to  secure  from  the  burning  ruins 
of  Troy  his  household  Gods,  than  were  these  first  settlers  of  America  to 
secure  to  themselves  and  their  children  the  benefits  of  the  common  law  of 
England.  From  thence,  through  every  stage  of  the  colonial  governments, 
the  common  law  was  in  force,  so  far  as  it  was  found  necessary  or  useful. 
When  the  revolution  commenced,  and  independent  state  governments  were 
formed;  in  the  midst  of  hostile  collisions  with  the  mother  country,  when 
the  passions  of  men  were  inflamed,  and  a  deep  and  general  abhorrence  of 
the  tyranny  of  the  British  government  was  felt ;  the  sages  and  patriots  who 
commenced  that  revolution,  and  founded  those  state  governments,  recog- 
nized in  the  common  law  a  guardian  of  liberty  and  social  order.  The  com- 
mon law  of  England  has  thus  always  been  the  common  law  of  the  colonies 
and  states  of  North  America;  not  indeed  in  its  full  extent,  supporting  a 
monarchy,  aristocracy,  and  hierarchy,  but  so  far  as  it  was  applicable  to  our 
more  free  and  happy  habits  of  government.2 

As  throwing  further  light  upon  the  subject  reference  is  made  to  two 
cases,  the  first  taken  from  an  older  State  of  the  Union,  explaining  the  sense 
in  which  the  common  law  is  to  be  understood,  and  the  second  from  one  of 
the  younger  States,  defining  the  sense  in  which  it  is  to  be  accepted  : 

In  Commonwealth  v.  Chapman,  (13  Metcalf,  68),  decided  in  1848,  Mr. 
Chief  Justice  Shaw  of  the  Supreme  Court  of  Massachusetts  said: 

We  take  it  to  be  a  well  settled  principle,  acknowledged  by  all  civilized 
states  governed  by  law,  that  by  means  of  a  political  revolution,  by  which 

1  Tappan,   83-4. 
'Ibid..    83. 


446  THE    UNITED   STATES  I   A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

the  political  organization  is  changed,  the  municipal  laws,  regulating  their 
social  relations,  duties  and  rights,  are  not  necessarily  abrogated.  They  re- 
main in  force,  except  so  far  as  they  are  repealed  or  modified  by  the  new 
sovereign  authority.  Indeed,  the  existence  of  this  body  of  laws,  and  the 
social  and  personal  rights  dependent  upon  them,  from  1776,  when  the 
declaration  of  independence  was  made,  and  our  political  revolution  took 
place,  to  1780,  when  this  constitution  was  adopted,  depend  on  this  principle.1 

So  much  for  the  general  principle ;  next  for  the  colony  of  English  origin : 

When  our  ancestors  [that  very  great  and  learned  Chief  Justice  con- 
tinues] first  settled  this  country,  they  came  here  as  English  subjects;  they 
settled  on  the  land  as  English  territory,  constituting  part  of  the  realm  of 
England,  and  of  course  governed  by  its  laws ;  they  accepted  charters  from 
the  English  government,  conferring  both  political  powers  and  civil  privi- 
leges; and  they  never  ceased  to  acknowledge  themselves  English  subjects, 
and  never  ceased  to  claim  the  rights  and  privileges  of  English  subjects,  till 
the  revolution.  It  is  not  therefore,  perhaps,  so  accurate  to  say  that  they 
established  the  laws  of  England  here,  as  to  say,  that  they  were  subject  to  the 
laws  of  England.  When  they  left  one  portion  of  its  territory,  they  were 
alike  subject,  on  their  transit  and  when  they  arrived  at  another  portion  of 
the  English  territory;  and  therefore  always,  till  the  declaration  of  inde- 
pendence, they  were  governed  and  protected  by  the  laws  of  England,  so 
far  as  those  laws  were  applicable  to  their  state  and  condition.  Under  this 
category  must  come  all  municipal  laws  regulating  and  securing  the  rights 
of  real  and  personal  property,  of  person  and  personal  liberty,  of  habitation, 
of  reputation  and  character,  and  of  peace.  The  laws  designed  for  the  pro- 
tection of  reputation  and  character,  and  to  prevent  private  quarrels,  affrays 
and  breaches  of  peace,  by  punishing  malicious  libel,  were  as  important  and 
as  applicable  to  the  state  and  conditon  of  the  colonists,  as  the  law  punishing 
violations  of  the  rights  of  property,  of  person,  or  of  habitation ;  that  is,  as 
laws  for  punishing  larceny,  assault  and  battery,  or  burglary.  Being  part 
of  the  common  law  of  England,  applicable  to  the  state  and  condition  of  the 
colonists,  they  necessarily  applied  to  all  English  subjects  and  territories,  as 
well  in  America  as  in  Great.  Britain,  and  so  continued  applicable  till  the 
declaration  of  independence.2 

In  the  case  of  Callanan  v.  Judd  (23  Wisconsin,  343),  decided  in  1868, 
Mr.  Justice  Paine  thus  spoke  of  law  and  equity,  particularly  of  the  latter: 

In  order  to  determine  che  meaning  of  the  phrase  "  judicial  power  as  to 
matters  of  law  and  equity,"  it  is  only  necessary  to  recur  to  the  system  of 
jurisprudence  established  in  this  country  and  derived  from  England,  in 
which  the  courts  had  certain  well-defined  powers  in  those  two  classes  of 
action.  In  actions  at  law  they  had  the  power  of  determining  questions  of 
law,  and  were  required  to  submit  questions  of  fact  to  a  jury.  When  the 
constitution,  therefore,  vested  in  certain  courts  judicial  power  in  mat- 
ters at  law,  this  would  be  construed  as  vesting  such  power  as  the  courts, 
under  the  English  and  American  systems  of  jurisprudence,  had  always  exer- 

'  13  Metcalf,  71. 
'  Ibid.,  73-4. 


JUDICIAL  POWERS  AND  THEIR  RELATION   TO   LAW  447 

cised  in  that  class  of  actions.  It  would  not  import  that  they  were  to  decide 
questions  of  fact,  because  such  was  not  the  judicial  power  in  such 
actions.   .    .    . 

Under  the  old  equity  system,  the  chancellor  might  at  any  time  refer 
questions  of  fact  to  a  jury,  but  it  was  merely  to  inform  his  conscience.  He 
might,  if  he  saw  fit,  disregard  their  verdict,  and  take  it  upon  himself  to 
dispose  of  the  questions  of  fact  absolutely,  as  he  could  have  done  in  the 
first  instance.1 

In  considering  judicial  power  in  the  sense  of  the  Federal  Convention  held 
August  27,  1787,  Mr.  Gouverneur  Morris  asked  whether  the  apparent  juris- 
diction "  extended  to  matters  of  fact  as  well  as  law  .  .  .  and  to  cases  of 
Common  law  as  well  as  Civil  law."  2  To  this  enquiry  Mr.  Wilson,  on  behalf 
of  the  Committee  of  Detail,  of  which  he  had  been  an  industrious  and  perhaps 
the  most  valuable  member,  replied  that  "  The  Committee  he  believed  meant 
facts  as  well  as  law  &  Common  as  well  as  Civil  law."  And  he  added,  "  The 
jurisdiction  of  the  federal  Court  of  Appeals  had  .  .  .  been  so  construed." 
The  question  and  the  answer  were  not  unimportant,  as  the  framers  of  the  Con- 
stitution were  using  terms  which  have  a  definite  signification,  and  the  law 
about  which  Mr.  Gouverneur  Morris  inquired  and  which  Mr.  Wilson  had  in 
mind  was  the  system  of  law  obtaining  in  courts  of  admiralty  and  maritime  mS?  and 
jurisdiction  to  which  the  judicial  power  of  the  United  States  expressly  ex-  included0" 
tends  by  the  second  section  of  the  third  article  of  the  Constitution.  With 
this  system  of  law  the  public  men  of  that  day  were  familiar,  inasmuch  as  the 
civil  law  in  its  technical  signification  meant,  as  distinct  from  the  common  law 
of  England,  the  principles  of  Roman  law  which  had  found  their  way  into  the 
practice  and  procedure  of  courts  of  admiralty. 

In  view  of  the  experience  had  with  the  Court  of  Federal  Appeals,  else- 
where considered;  in  view  of  the  express  language  of  the  Constitution  and 
leading  decisions  of  the  federal  courts,  which  have  given  precision  and 
refinement  to  admiralty  procedure  in  the  United  States,  it  does  not  seem 
necessary  to  dwell  upon  this  phase  of  the  subject.3 

It  is  however  advisable  to  advert  to  the  fact  that  the  judicial  power  of 
the  United  States  was  held  in  the  case  of  Penhallow  v.  Dome,  (3  Dallas,  54),  0f°  Prize 
decided  in  1795,  to  extend  to  cases  which  had  already  been  decided  by  the 
Federal  Court  of  Appeals  under  the  Confederation,  but  whose  judgments 
had  not  been  executed,  and  to  the  decision  of  The  Betsey,  (3  Dallas,  6), 
decided  the  year  before,  in  which  the  Supreme  Court  held  that  the  District 

'23  Wisconsin,  349,  350. 

*  Documentary  History  of  the  Constitution,  Vol.  iii.  p.  627. 

"See  on  this  subject  the  following  three  out  of  the  many  cases  which  might  be  cited: 
De  Lovio  v.  Boit  (2  Gallison,  398),  1815,  by  Mr.  Justice  Story  on  Circuit;  The  Scotia, 
(14  Wallace,  170),  decided  by  the  Supreme  Court  in  1871;  The  Lottawaivia  (21  Wallace, 
558),  decided  in   1874. 


An  Inter- 
national 


448  THE   UNITED   STATES  I    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

Court  of  the  United  States  was  not  merely  a  court  of  admiralty  jurisdiction, 
but  that  it  was  a  prize  court  without  having  to  be  specifically  created  as  such. 
In  this  latter  court,  as  is  well  known,  the  law  of  nations,  in  so  far  as  it 
deals  with  prize,  is  administered,  which  Sir  William  Blackstone  held  in  his 
"  Commentaries  "  to  be  a  part  of  the  common  law,  saying: 

the  law  of  nations  (whenever  any  question  arises  which  is  properly  the 
object  of  its  jurisdiction)  is  here  adopted  in  its  full  extent  by  the  common 
law,  and  is  held  to  be  a  part  of  the  law  of  the  land.1 

For  this  statement  the  learned  commentator  had  the  best  of  authority.  Lord 
Chancellor  Talbot  had  said  in  the  case  of  Buvot  v.  Barbut,  (Cases  Tempore 
Talbot,  231),  "That  the  law  of  nations  in  its  full  extent  was  part  of  the 
law  of  England."  And  Lord  Mansfield  himself,  who  had  been  of  counsel  in 
the  case  of  Buvot  v.  Barbut,  said  in  the  case  of  Triquet  v.  Bath  (3  Burrow, 
1478,  1480),  decided  in  1764,  that  "this  privilege  of  foreign  ministers  and 
their  domestic  servants  depends  upon  the  law  of  nations.  The  act  of  parlia- 
ment of  7.  Ann,  c.  12,  is  declaratory  of  it."  Three  years  later  His  Lordship 
further  said  in  the  leading  case  of  Heathfield  v.  Chilton,  (4  Burrow,  2015, 
2016),  that  "  the  privileges  of  public  ministers  and  their  retinue  depend  upon 
the  law  of  nations,  which  is  part  of  the  common  law  of  England,  And  the 
act  of  Parliament  of  7  Ann  c.  12  did  not  intend  to  alter,  nor  can  alter  the 
law  of  nations."  It  was  natural,  therefore,  that  the  statesmen  of  the  Revolu- 
tion should  consider  the  law  of  nations  as  part  of  the  common  law.  They 
had  by  ordinance  of  the  Congress  of  December  4,  1781,  relating  to  maritime 
captures  professed  obedience  to  the  law  of  nations  "  according  to  the  general 
usages  of  Europe."  There  was  a  very  interesting  case  with  which  they 
must  have  been  familiar,  inasmuch  as  it  happened  in  Philadelphia,  then  gen- 
erally looked  upon  as  the  capital  of  the  country,  and  as  it  involved  the  French 
minister  plenipotentiary  and  the  King  of  France  it  must  have  created  a  stir. 
In  the  case  of  Rcspublica  v.  De  Longchamps,  (1  Dallas,  111),  decided  in 
1784,  the  defendant  was  indicted  and  convicted  because,  as  stated  in  the  in- 
dictment, on  the  17th  of  May,  "  in  the  dwelling-house  of  his  Excellency  the 
French  Minister  Plenipotentiary,  in  the  presence  of  Francis  Barbe  Marbois, 
unlawfully  and  insolently  did  threaten  and  menace  bodily  harm  and  violence 
to  the  person  of  the  said  Francis  Barbe  Marbois,  he  being  Consul  General  of 
France  to  the  United  States,  Consul  for  the  state  of  Pennsylvania,  Secretary 
of  the  French  Legation,  &c.  resident  in  the  house  aforesaid,  and  under  the  pro- 
tection of  the  law  of  nations  and  this  Commonwealth." 

The  case  was  as  interesting  as  it  was  novel.    Mr.  Chief  Justice  McKean, 

1  Sir  William   Blackstone,   Commentaries   on   the   Laws  of  England,   1765   ed.,  Vol.   II, 
p.  67. 


JUDICIAL  POWERS  AND  THEIR  RELATION   TO  LAW  449 

before  whom  it  was  tried  in  Philadelphia  stated  that  it  was  "  a  case  of 
the  first  impression  in  the  United  States,"  and  that  "  it  must  be  determined 
on  the  principles  of  the  laws  of  nations  which  form  a  part  of  the  municipal 
law  of  Pennsylvania."  1 

The  gravity  of  the  offense  is  indicated  by  the  following  sentence  which 
the  Chief  Justice,  on  behalf  of  the  court,  pronounced  as  follows: 

That  you  pay  a  fine  of  one  hundred  French  crowns  to  the  commonwealth  ; 
that  you  be  imprisoned  until  the  4th  day  of  July  1786,  which  will  make  a 
little  more  than  two  years  imprisonment  in  the  whole ;  that  you  then  give 
good  security  to  keep  the  peace,  and  be  of  good  behaviour  to  all  public 
ministers,  secretaries  to  embassies,  and  consuls,  as  well  as  to  all  the  liege 
people  of  Pennsylvania,  for  the  space  of  seven  years,  by  entering  into  a 
recognizance,  yourself  in  a  thousand  pounds,  and  two  securities  in  five  hun- 
dred pounds  each :  that  you  pay  the  costs  of  this  prosecution,  and  remain 
committed  until  this  sentence  be  complied  with.2 

It  was  natural  for  Pennsylvania  to  indict  and  to  sentence  De  Longchamps, 
inasmuch  as  the  law  of  nations  was  a  part  of  the  common  law,  and  the  law, 
criminal  as  well  as  civil,  was  in  force  in  Pennsylvania.  There  might  have 
been  some  difficulty  in  regarding  the  law  of  nations  as  a  part  of  the  law  of 
the  United  States ;  but  that  difficulty  seems  to  have  been  obviated  by  section 
eight  of  the  first  article  of  the  Constitution,  authorizing  in  express  terms 
the  Congress  "  To  define  and  punish  Piracies  and  Felonies  committed  on 
the  high  Seas,  and  Offenses  against  the  Law  of  Nations."  As  nations  have 
trouble  enough  in  administering  their  domestic  laws,  without  seeking  to 
enforce  within  their  limits  foreign  laws  as  such,  the  law  of  nations,  there- 
fore, became  by  this  provision  of  the  Constitution,  by  implication  if  not  by 
express  statement,  the  law  of  the  land,  This  has  been  universally  held  from 
the  first  to  the  last  decision  of  the  Supreme  Court,  especially  in  the  case  of 
The  Paquete  Habana,  (175  U.  S.  677,  700),  decided  in  1900,  in  which  Mr. 
Justice  Gray,  speaking  for  the  court,  said :  "  International  law  is  a  part  of 
our  law,  and  must  be  ascertained  and  administered  by  the  courts  of  justice 
of  appropriate  jurisdiction,  as  often  as  questions  of  right  depending  upon 
it  are  duly  presented  for  their  determination."  As  the  law  of  the  land  it  is 
the  law  of  each  State  of  the  Union,  as  well  as  of  the  Union,  and  as  such,  it 
is  administered  in  all  courts,  in  all  cases  involving  its  principles. 

The  judicial  power,  therefore,  extends  to  cases  in  law  and  equity,  ad- 
miralty and  maritime  jurisdiction,  and  the  law  of  nations. 

1  1  Dallas,  114. 
'Ibid.,  118. 


XXII 
IMMUNITY  OF  STATES  AND  NATIONS  FROM  SUIT 

It  is  an  established  principle  of  jurisprudence  in  all  civilized  nations  that  the  sovereign 
cannot  be  sued  in  its  own  courts,  or  in  any  other,  without  its  consent  and  permission  ;  but 
it  may,  if  it  thinks  proper,  waive  this  privilege,  and  permit  itself  to  be  made  a  defendant 
in  a  suit  by  individuals,  or  by  another  State.  And  as  this  permission  is  altogether  voluntary 
on  the  part  of  the  sovereignty,  it  follows  that  it  may  prescribe  the  terms  and  conditions 
on  which  it  consents  to  be  sued,  and  the  manner  in  which  the  suit  shall  be  conducted,  and 
may  withdraw  its  consent  whenever  it  may  suppose  that  justice  to  the  public  requires  it. 
(Chief  Justice  Taney  in  Beers  v.  State  of  Arkansas,  20  Howard,  527,  529,  decided  in  1857.) 

It  is  a  familiar  doctrine  of  the  common  law,  that  the  sovereign  cannot  be  sued  in  his 
own  courts  without  his  consent.  The  doctrine  rests  upon  reasons  of  public  policy;  the 
inconvenience  and  danger  which  would  follow  from  any  different  rule.  It  is  obvious  that 
the  public  service  would  be  hindered,  and  the  public  safety  endangered,  if  the  supreme 
authority  could  be  subjected  to  suit  at  the  instance  of  every  citizen,  and  consequently  con- 
trolled in  the  use  and  disposition  of  the  means  required  for  the  proper  administration  of 
the  government.  The  exemption  from  direct  suit  is,  therefore,  without  exception.  This 
doctrine  of  the  common  law  is  equally  applicable  to  the  supreme  authority  of  the  nation, 
the  United  States  They  cannot  be  subjected  to  legal  proceedings  at  law  or  in  equity 
without  their  consent;  and  whoever  institutes  such  proceedings  must  bring  his  case  within 
the  authority  of  some  act  of  Congress.  Such  is  the  language  of  this  court  in  United  States 
v.  Clarke,  8  Peters,  444. 

The  same  exemption  from  judicial  process  extends  to  the  property  of  the  United  States, 
and  for  the  same  reasons.  As  justly  observed  by  the  learned  judge  who  tried  this  case, 
there  is  no  distinction  between  suits  against  the  government  directly,  and  suits  against 
its  property. 

But  although  direct  suits  cannot  be  maintained  against  the  United  States,  or  against 
their  property,  yet,  when  the  United  States  institute  a  suit,  they  waive  their  exemption 
so  far  as  to  allow  a  presentation  by  the  defendant  of  set-offs,  legal  and  equitable,  to  the 
extent  of  the  demand  made  or  property  claimed,  and  when  they  proceed  in  rem,  they  open 
to  consideration  all  claims  and  equities  in  regard  to  the  property  libelled.  They  then  stand 
in  such  proceedings,  with  reference  to  the  rights  of  defendants  or  claimants,  precisely 
as  private  suitors,  except  that  they  are  exempt  from  costs  and  from  affirmative  relief 
against  them,  beyond  the  demand  or  property  in  controversy.  (Mr.  Justice  Field  in  The 
Siren,  7  Wallace,  152,  153-154,  decided  in  1868.) 

While  the  United  States  as  a  government  may  not  be  sued  without  its  consent,  yet 
with  its  consent  it  may  be  sued,  and  the  judicial  power  of  the  United  States  extends  to 
such  a  controversy.  Indeed,  the  whole  jurisdiction  of  the  Court  of  Claims  rests  upon  this 
proposition.  (Mr.  Justice  Brewer  in  State  of  Minnesota  v.  Hitchcock,  185  United  States 
Reports,  373,  386,  decided  in  1002.) 

Sec.  145.  The  Court  of  Gaims  shall  have  jurisdiction  to  hear  and  determine  the  follow- 
ing matters : 

First.  All  claims  (except  for  pensions)  founded  upon  the  Constitution  of  the  United 
States  or  any  law  of  Congress,  upon  any  regulation  of  an  Executive  Department,  upon 
any  contract,  express  or  implied,  with  the  Government  of  the  United  States,  or  for  damages, 
liquidated  or  unliquidated,  in  cases  not  sounding  in  tort,  in  respect  of  which  claims  the 
party  would  be  entitled  to  redress  against  the  United  States  either  in  a  court  of  law, 
equity,  or  admiralty  if  the  United  States  were  suable:  Provided,  however,  That  nothing 
in  this  section  shall  be  construed  as  giving  to  the  said  court  jurisdiction  to  hear  and  deter- 
mine claims  growing  out  of  the  late  civil  war,  and  commonly  known  as  "  war  claims,"  or 
to  hear  and  determine  other  claims  which,  prior  to  March  third,  eighteen  hundred  and 
eighty-seven,  had  been  rejected  or  reported  on  adversely  by  any  court,  department,  or  com- 
mission authorized  to  hear  and  determine  the  same. 

450 


IMMUNITY  OF  STATES  AND   NATIONS   FROM   SUIT  451 

Second.  All  set-offs,  counterclaims,  claims  for  damages,  whether  liquidated  or  unliqui- 
dated, or  other  demands  whatsoever  on  the  part  of  the  Government  of  the  United  States 
against  any  claimant  against  the  Government  in  said  court:  Provided,  That  no  suit  against 
the  Government  of  the  United  States,  brought  by  any  officer  of  the  United  States  to 
recover  fees  for  services  alleged  to  have  been  performed  for  the  United  States,  shall  be 
allowed  under  this  chapter  until  an  account  for  said  fees  shall  have  been  rendered  and 
finally  acted  upon  as  required  by  law,  unless  the  proper  accounting  officer  of  the  Treasury 
fails  to  act  finally  thereon  within  six  months  after  the  account  is  received  in  said  office. 

Third.  The  claim  of  any  paymaster,  quartermaster,  commissary  of  subsistence,  or 
other  disbursing  officer  of  the  United  States,  or  of  his  administrators  or  executors,  for 
relief  from  responsibility  on  account  of  loss  by  capture  or  otherwise,  while  in  the  line 
of  his  duty,  of  Government  funds,  vouchers,  records,  or  papers  in  his  charge,  and  for 
which  such  officer  was  and  is  held  responsible.  (The  Judicial  Code  of  the  United  States, 
ign,  36  Statutes  at  Large,  1136.) 


CHAPTER  XXII 

IMMUNITY    OF    STATES   AND    NATIONS    FROM    SUIT 

In  the  exercise  of  judicial  power  and  judicial  discretion  a  judgment,  it 
may  be  supposed,  has  been  rendered  in  a  case  between  actual  litigants  involv- 
ing a  principle  of  law  or  equity.  As  there  existed  between  the  parties  a 
difference  of  opinion  —  a  contest  —  it  is  the  duty  of  the  court,  in  the  exer- 
cise of  judicial  power  and  judicial  discretion,  to  decide  that  controversy, 
settling  finally  and  without  appeal  the  rights  of  the  litigants  in  the  matter 
of  the  dispute,  whether  it  be  by  a  court  of  first  instance,  from  which  no 
appeal  is  taken  or  allowed,  or  whether  it  be  the  court  of  last  resort  upon 
appeal.  The  result  in  either  case  is  an  adjudication  or  culmination  of  juris- 
diction. In  the  exercise  of  the  judicial  power  a  judgment  of  the  court  is 
not  only  a  final  determination  but  one  which,  when  determined,  can  be  or  is 
to  be  enforced  by  appropriate  process  of  that  court.  For,  according  to  the 
conception  of  judicial  power  in  the  United  States,  a  judgment  of  a  court, 
to  be  final,  is  one  which  can  be  executed  under  process  from  the  court.  This 
statement,  however,  is  to  be  understood  in  the  sense  that  the  decision  is  final 
as  to  the  rights  of  the  parties  in  a  judicial  matter  and  is  to  be  executed 
against  individual  litigants;  and  in  this  respect  American  practice  may  be 
said  to  accord  with  the  practice  of  other  nations. 
|uia^nst  There  is,  however,  a  matter  in  which  the  practice  of  the  United  States 

s,ates  differs  from  that  of  other  countries,  in  that  a  State  may,  under  certain  cir- 

cumstances, be  sued  as  of  right  in  the  Supreme  Court  of  the  United  States 
in  controversies  involving  law  or  equity,  and  the  rights  of  the  litigating 
parties  fixed  by  a  judgment  of  the  court.  As  this  is  an  extension  of  judicial 
power  beyond  precedent  at  the  time  of  the  adoption  of  the  Constitution  of 
the  United  States,  we  are  prepared  to  expect  that,  in  the  exercise  of  this  new 
right,  there  may  be  limitations  or  qualifications  of  it  unknown  in  suits  be- 
tween individuals.  For  in  this  instance  we  are  dealing  with  peoples  in  their 
political  capacity.  It  would  not  necessarily  follow  that  the  process  obtain- 
ing in  the  one  would  obtain  in  the  other  case  or  that  the  procedure  applicable 
to  the  individual  would  be  applicable  to  the  aggregation  which  we  call  a  state 
and  which,  although  it  be  a  person,  is  an  artificial  person.  A  careful  examina- 
tion of  the  records  of  the  Constitutional  Convention  of  1787  and  of  the  pro- 
ceedings of  the  conventions  of  the  different  States  ratifying  the  Constitution, 
fails  to  disclose  any  intent  on  the  part  of  the  framers  of  the  Constitution,  or 

452 


IMMUNITY    OF    STATES    ANjD    NATIONS    FROM    SUIT  453 

of  the  States  ratifying  it,  that  a  judgment  against  a  State  was  to  be  executed 
by  the  force  of  the  United  States.  Yet  it  was  doubtless  the  feeling  of 
the  framers  and  of  those  advising  the  ratification  of  the  Constitution  that, 
in  extending  the  judicial  power  to  controversies  against  States,  they  were 
not  doing  a  useless  thing,  and  that  the  exercise  of  judicial  power  in  con- 
troversies against  States  would  be  obeyed,  whatever  the  sanction. 

Mr.  Chief  Justice  Taney,  to  cite  only  one  illustrious  example,  recog-  Coercion 
nized  the  distinction  between  a  judgment  against  an  individual  and  a  judg- 
ment against  a  State  in  its  political  capacity.  It  is  to  be  presumed  that  he 
had  this  distinction  in  mind  when  he  drafted  the  opinion  for  the  court  in  the 
case  of  Gordon  v.  United  States,  because  four  years  before,  in  1860,  he  had 
solemnly  declared,  on  behalf  of  the  court,  in  delivering  its  unanimous  opinion 
in  the  case  of  Kentucky  v.  Dennison  (24  Howard,  66,  109-10),  that,  "  If  the 
Governor  of  Ohio  refuses  to  discharge "  a  duty  imposed  upon  him  by 
the  Constitution  and  regulated  in  its  exercise  by  an  act  of  Congress,  "  there  is 
no  power  delegated  to  the  General  Government,  through  the  Judicial  Depart- 
ment, or  any  other  department,  to  use  any  coercive  means  to  compel  him." 

In  view  of  the  importance  of  this  matter,  the  exact  language  of  Chief 
Justice  Taney  in  the  case  of  Gordon  v.  United  States  (117  U.  S.,  697,  701-2) 
is  quoted : 

It  was  to  prevent  an  appeal  to  the  sword  and  a  dissolution  of  the  compact 
that  this  Court,  by  the  organic  law,  was  made  equal  in  origin  and  equal  in 
title  to  the  legislative  and  executive  branches  of  the  government :  its  powers 
defined,  and  limited,  and  made  strictly  judicial,  and  placed  therefore  beyond 
the  reach  of  the  powers  delegated  to  the  Legislative  and  Executive  De- 
partments. And  it  is  upon  the  principle  of  the  perfect  independence  of  this 
Court,  that  in  cases  where  the  Constitution  gives  it  original  jurisdiction,  the 
action  of  Congress  has  not  been  deemed  necessary  to  regulate  its  exercise, 
or  to  prescribe  the  process  to  be  used  to  bring  the  parties  before  the  court, 
or  to  carry  its  judgment  into  execution.  Tbe  jurisdiction  and  judicial  power 
being  vested  in  the  court,  it  proceeded  to  prescribe  its  process  and  regulate 
its  proceedings  according  to  its  own  judgment,  and  Congress  has  never  at- 
tempted to  control  or  interfere  with  the  action  of  the  court  in  this  respect. 

In  so  far  as  States  are  concerned,  the  Constitution  provides  that  the  {,^icial 
judicial  power  of  the  United  States  shall  extend  ( 1)  to  controversies  to  which  '^\"its 
the  United  States  shall  be  a  party;  (2)  to  controversies  between  two  or  more 
States  (3)  between  a  State  and  citizens  of  another  State;  (4)  between  citi- 
zens of  different  States  (5)  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States;  (6)  and  between  a  State,  or  the  citizens 
thereof,  and  foreign  States,  citizens  or  subjects.  It  further  provides  that 
"  in  all  cases  ....  in  which  a  State  shall  be  a  party,  the  Supreme  Court 
shall  have  original  jurisdiction." 


454  THE    UNITED   STATES:   A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

S"beent  The  consent  to  be  sued  is  a  general  consent  on  behalf  of  the  States  which 

Sued  does  not  have  to  be  renewed  on  any  particular  occasion;  and,  given  in  the 

Constitution,  it  can  not  be  withdrawn  by  any  of  the  United  States.  The 
consent  to  be  sued  in  a  court  other  than  the  Supreme  Court  is  a  special 
consent  which  may  be  given  by  statute  in  general  or  for  a  particular  purpose; 
and  in  giving  it  the  State  may  express  the  conditions  upon  which  it  is  given 
and  may  revoke  it  according  to  its  pleasure  at  any  time  after  the  beginning 
of  the  suit  and  before  final  judgment. 

In  this  latter  case,  however,  we  are  not  dealing  with  the  consent  given  by 
the  Constitution  but  with  the  consent  of  a  State,  in  its  original  capacity,  un- 
affected by  the  provisions  of  the  Constitution.  In  order  to  have  a  clear  under- 
standing of  this  subject,  it  may  be  well  to  consider  in  this  place  whether  a 
State  in  international  law,  which  is  generally  called  a  nation,  may  be  sued 
without  its  consent,  and  whether  the  States  which,  by  their  delegates,  drafted, 
and,  by  their  conventions,  ratified  the  Constitution  were  to  be  considered 
as  nations  in  the  sense  of  international  law,  or  as  possessing,  in  the  matter 
of  suits,  the  same  rights  and  privileges.  Because,  if  the  States  under  the 
Confederation  stood  on  an  equality  with  the  nations  at  large;  and  if  they 
renounced  an  immunity  by  the  Constitution  which  they  possessed  as  States 
before  its  ratification;  it  follows  that  the  right  of  suit  is  in  derogation  of  their 
sovereignty,  and  that  it  is  therefore  to  be  strictly  construed,  as  in  every  grant 
against  a  sovereign,  and  is  to  be  exercised  according  to  and  within  the  limits 
of  the  grant. 

There  is  no  need  to  quote  authority  for  the  statement  that  any  and  every 
nation  under  international  law  is  exempt  from  suit  without  its  express  con- 
sent, for  consent  is  not  and  can  not  in  such  cases  be  implied.  The  reason  why 
a  nation  should  be  exempt  from  suit  has  been  variously  and  differently  stated, 
but  the  fact  of  immunity  is  not  open  to  argument.  Mr.  Justice  Gray,  whose 
learning  often  appalled  while  it  convinced,  said  in  the  case  of  Briggs  v.  Light- 
Boats  (11  Allen,  Mass.,  157),  decided  in  1865,  on  the  question  of  the  im- 
munity of  the  State  from  suit,  that  "  the  broader  reason  is  that  it  would  be 
inconsistent  with  the  very  idea  of  supreme  executive  power  and  would  en- 
danger the  performance  of  the  public  duties  of  the  sovereign,  to  subject  him 
to  repeated  suits  as  a  matter  of  right  at  the  will  of  any  citizen,  and  to  submit 
to  the  judicial  tribunals  the  trial  and  disposition  of  his  public  property,  his 
instruments  and  means  of  carrying  on  his  government,  in  war  and  in  peace, 
and  the  moneys  in  his  treasury."  And  in  a  more  recent  case,  Mr.  Justice 
Gray's  successor  on  the  Supreme  Court,  Mr.  Justice  Holmes,  said,  in  deliver- 
ing its  opinion  in  the  case  of  Kwananakoa  v.  Polyblank  (205  U.  S.,  349, 
353),  decided  in  1907: 


IMMUNITY    OF   STATES   AND    NATIONS    FROM    SUIT  455 

Some  doubts  have  been  expressed  as  to  the  source  of  the  immunity  of  a 
sovereign  power  from  suit  without  its  own  permission,  but  the  answer  has 
been  public  property  since  before  the  days  of  Hobbes.  (Leviathan,  c.  26,  2.) 
A  sovereign  is  exempt  from  suit,  not  because  of  any  formal  conception  or 
obsolete  theory,  but  on  the  logical  and  practical  ground  that  there  can  be  no 
legal  right  as  against  the  authority  that  makes  the  law  on  which  the  right 
depends.  "  Car  on  pent  bien  recevoir  loy  d'autruy,  metis  il  est  impossible  par 
nature  de  se  dormer  loy."  Bodin,  Republique,  1,  c.  8.  Ed.  1629,  p.  132. 
Sir  John  Eliot,  De  Jure  Maiestatis,  c.  3.  Nemo  suo  statuto  ligatur  neces- 
sitative.  Baldus.,  De  Leg.  et  Const.,  Digma  Vox.  (2d  ed.,  1496,  fol.  51  B. 
Ed.  1539,  fol.  61.) 

It  is  thus  clear  that  by  the  law  of  nations  a  sovereign  State  was  exempt 
from  suit;  and  it  was  also  clear  that  the  particular  sovereign  State,  to  wit, 
England,  from  which  country  the  colonists  had  derived  their  laws  and  insti- 
tutions, was  immune  from  suit  except  with  its  own  consent.  It  remains  to 
be  considered  if  the  States  whose  independence  was  proclaimed  by  the  im- 
mortal Declaration  believed  themselves  free  from  suit.  In  this  great  docu- 
ment the  united  colonies  are  declared  to  be  "  free  and  independent 
States."  After  specifying  certain  powers  which  independent  States  may 
exercise,  it  is  further  asserted  that  they  have  the  power  "  to  do  all  other 
acts  and  things  which  independent  States  may  of  right  do."  The  Articles 
of  Confederation,  approved  by  the  Congress  in  1777,  but  not  ratified  by  the 
last  of  the  thirteen  States,  and  therefore  not  binding  upon  any  of  them, 
until  March  1,  1781,  declares  in  its  second  article  the  States  to  be  sovereign, 
free  and  independent  and  possessed  of  every  power,  jurisdiction  and  right 
which  it  did  not  grant  to  the  United  States  in  Congress  assembled.  In 
Article  9,  the  States  forming  the  Confederacy  allowed  themselves  to  be  sued 
by  one  another  for  specified  purposes  and  in  a  prescribed  manner. 

But  it  is  evident,  from  the  case  of  Simon  Nathan  v.  the  Commonwealth 
of  Virginia  (1  Dallas,  77,  Note  A),  tried  in  the  Court  of  Common  Pleas  of 
Philadelphia  in  the  September  term  of  1781,  that,  apart  from  the  Articles  of 
Confederation  and  the  right  of  suit  according  to  the  method  there  prescribed, 
a  sovereign,  free  and  independent  State  of  the  Confederacy  was  immune  from 
suit.    The  facts  of  the  case  are  thus  stated  by  the  reporter : 

A  foreign  attachment  was  issued  against  the  Commonwealth  of  Virginia, 
at  the  suit  of  Simon  Nathan ;  and  a  quantity  of  clothing,  imported  from 
France,  belonging  to  that  state,  was  attached  in  Philadelphia.  The  dele- 
gates in  Congress  from  Virginia,  conceiving  this  a  violation  of  the  laws 
of  nations,  applied  to  the  Supreme  Executive  Council  of  Pennsylvania,  by 
whom  the  sheriff  was  ordered  to  give  up  the  goods.  The  counsel  for  the 
plaintiff,  finding  that  the  sheriff  suppressed  the  writ,  and  made  no  return 
of  his  proceedings,  obtained,  September  20,  1781,  a  rule  that  the  sheriff 
should  return  the  writ,  unless  cause  was  shown. 


456  THE   UNITED   STATES:   A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

Upon  the  argument,  the  Attorney  General,  on  the  part  of  the  sheriff  and  by 
direction  of  the  Supreme  Executive  Council,  "  showed  cause,"  to  quote  again 
the  reporter,  "  and  prayed  that  the  rule  might  be  discharged."  The  Attorney 
General,  it  will  be  observed,  took  his  stand  upon  the  law  of  nations.  Thus: 

noreAiways  He  premised,  that  though  the  several  states  which   form  our  federal 

an  Exemption  republic,  had,  by  the  confederation,  ceded  many  of  the  prerogatives  of  sov- 

ereignty to  the  United  States,  yet  these  voluntary  engagements  did  not  injure 
their  independence  on  each  other;  but  that  each  was  a  sovereign,  "with 
every  power,  jurisdiction  and  right,  not  expressly  given  up."  He  then  laid 
down  two  positions.  1.  That  every  kind  of  process  issued  against  a  sov- 
ereign, is  a  violation  of  the  laws  of  nations;  and  is,  in  itself,  null  and  void. 
2.  That  a  sheriff  cannot  be  compelled  to  serve  or  return  a  void  writ.1 

Leaving  out  the  balance  of  the  argument  supporting  these  positions,  it  is  to 
be  observed  that  counsel  for  the  plaintiff  admitted  the  sovereignty  of  Vir- 
ginia, but  insisted  that  sovereignty  was  not  a  defense  against  an-  act  of  in- 
justice.    Thus,  to  quote  the  language  of  the  reporter: 

The  counsel  for  the  plaintiff  insisted,  that  though  Virginia  was  a  sov- 
ereign state,  yet  this  ought  not  to  exempt  her  property  in  every  case  from 
the  laws  and  jurisdiction  of  another  state.  The  sovereignty  should  never 
be  made  a  plea  in  bar  of  justice;  and  that  the  true  idea  of  prerogative,  was 
the  power  of  doing  good,  and,  not,  as  it  had  sometimes  been  expressed, 
"  the  divine  right  of  doing  ill."  2 

Without  considering  the  balance  of  the  plaintiff's  contention,  which,  as  has 
been  seen,  recognized  the  sovereignty  of  Virginia,  it  is  sufficient  to  quote  the 
judgment  of  this  case  in  the  words  of  the  reporter: 

The  Court  held  the  matter  some  days  under  advisement;  and  at  their 
next  meeting,  the  President  delivered  it  as  the  judgment  of  the  court: 

"  That  the  rule  made  upon  the  sheriff,  to  return  the  writ  issued  against 
the  commonwealth  of  Virginia,  at  the  suit  of  Simon  Nathan,  should  be 
discharged."  3 

The  meaning  of  this  is  free  from  doubt.  The  Commonwealth  of  Virginia, 
sovereign  under  the  Articles  of  Confederation,  could  not  be  sued  except  in 
the  manner  prescribed  by  the  Articles  of  Confederation;  that  a  writ  of  at- 
tachment, if  issued,  would  be  dissolved;  and  that  an  order  of  the  court 
directing  the  sheriff  to  return  the  writ  would  be  discharged  as  inconsistent 
with  the  rights  of  a  sovereign  State. 

It  can  therefore  be  confidently  stated,  and  without  fear  of  successful  con- 
tradiction, that  the  States  represented  by  their  delegates  in  the  Philadelphia 

1  1  Dallas,  78. 
3  Ibid.,  79. 
•  Ibid.  80. 


IMMUNITY    OF    STATES    AND    NATIONS    FROM    SUIT  457 

Conference  were  sovereign,  and  possessed  of  all  sovereign  powers  except  in 
so  far  as  they  had  been  pleased  to  renounce  the  exercise  thereof;  that  one 
of  the  powers  of  sovereignty  inherent  in  a  State  was  immunity  from  suit, 
except  as  the  States  had  renounced  the  exemption  in  the  Articles  of  Con- 
federation; and  that  they  were  exempt  from  suit  under  the  new  and  more 
perfect  Union  drafted  by  their  delegates  in  conference  and  ratified  by  the 
States,  except  in  so  far  as  they  renounced  the  immunity. 

It  is  frequently  said  that,  under  the  9th  of  the  Articles  of  Confederation, 
a  State  could  be  sued  by  a  State  only  in  the  matter  of  boundary ;  but  this  is  so 
glaringly  inconsistent  with  the  express  language  of  the  articles  that  it  is  hard 
to  see  how  anyone  at  all  familiar  with  its  text  could  fall  into  such  an  error. 
And  yet  Mr.  Justice  McLean,  delivering  the  opinion  of  the  Supreme  Court 
in  the  case  of  Briscoe  v.  Bank  of  Kentucky  (11  Peters,  257,  321),  said  in 
January,  1837: 

But  was  a  state  liable  to  be  sued?  ....  No  sovereign  state  is  liable  consent'"10"' 
to  be  sued   without  her  consent.     Under  the  articles   of   confederation,   a   inconsistent 
state  could  be  sued  only  in  cases  of  boundary.  Sovereignty 

The  fact  is  that,  upon  the  ratification  of  the  Constitution  and  the  institution 
of  the  government  under  it,  the  Articles  of  Confederation  dropped  out  of 
sight,  and  they  have  not  yet  been  treated  by  historians  and  publicists  as  they 
deserve.     The  material  portion  of  the  9th  Article  reads : 

The  United  States  in  Congress  assembled  shall  also  be  the  last  resort 
on  appeal  in  all  disputes  and  differences  now  subsisting  or  that  may  here- 
after arise  between  two  or  more  States  concerning  boundary,  jurisdiction, 
or  any  cause  whatever. 

But  the  nature  and  extent  of  this  power  and  its  exercise  need  not  detain 
us  here.  It  is  merely  mentioned  in  passing  to  show  that  the  States  had 
consented  generally  to  suit  and  had  prescribed  the  method. 

The  immunity  of  a  State  of  the  American  Union  from  suit  was  discussed 
in  Beers  v.  State  of  Arkansas  (20  Howard,  527),  decided  in  1857.  In  this 
interesting  and  leading  case  it  appeared  that  the  constitution  of  the  State  of 
Arkansas  authorized  the  General  Assembly  to  direct  "  in  what  courts  and  in 
what  manner  suits  may  be  commenced  against  the  State ;  "  and,  in  pursuance 
of  this  provision  of  the  constitution,  an  act  was  passed.  Under  the  permis- 
sion of  this  act,  suit  was  brought  against  the  State  which,  after  the  suit  had 
begun,  passed  an  act  requiring  the  plaintiff  to  file  in  open  court  the  bonds  on   Waiving  of 

.  .  Sovereignty 

which  the  suit  was  brought.  This  the  plaintiff  refused  to  do,  and  the  court 
dismissed  the  suit.  On  writ  of  error  carried  to  the  Supreme  Court  of  the 
United  States,  the  judgment  of  the  court  of  last  resort  of  Arkansas  was 


458  THE    UNITED   STATES:   A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

affirmed,  and,  in  the  course  of  the  unanimous  opinion  of  the  court  announc- 
ing judgment,  Mr.  Chief  Justice  Taney  said : 

It  is  an  established  principle  of  jurisprudence  in  all  civilized  nations 
that  the  sovereign  cannot  be  sued  in  its  own  courts,  or  in  any  other,  without 
its  consent  and  permission;  but  it  may,  if  it  thinks  proper,  waive  this 
privilege,  and  permit  itself  to  be  made  a  defendant  in  a  suit  by  individuals, 
or  by  another  State.  And  as  this  permission  is  altogether  voluntary  on  the 
part  of  the  sovereignty,  it  follows  that  it  may  prescribe  the  terms  and  con- 
ditions on  which  it  consents  to  be  sued,  and  the  manner  in  which  the  suit 
shall  be  conducted,  and  may  withdraw  its  consent  whenever  it  may  suppose 
that  justice  to  the  public  requires  it.1 

Considering  the  question  whether  the  law  of  the  General  Assembly  permitting 
suit  was,  when  acted  upon  by  the  plaintiff,  in  the  nature  of  a  contract,  which 
could  not  be  repealed  without  injury  to  the  plaintiff's  rights,  the  Chief  Justice 
said,  speaking  for  the  court: 

Arkansas,  by  its  Constitution,  so  far  waived  the  privilege  of  sovereignty 
as  to  authorize  suits  to  be  instituted  against  it  in  its  own  courts,  and  dele- 
gated to  its  General  Assembly  the  power  directing  in  what  courts,  and  in 
what  manner,  the  suit  might  be  commenced.  And  if  the  law  of  1854  had 
been  passed  before  the  suit  was  instituted,  we  do  not  understand  that  any 
objection  would  have  been  made  to  it.  The  objection  is,  that  it  was  passed 
after  this  suit  was  instituted,  and  contained  regulations  with  which  the 
plaintiff  could  not  conveniently  comply.  But  the  prior  law  was  not  a  con- 
tract. It  was  an  ordinary  act  of  legislation,  prescribing  the  conditions  upon 
which  the  State  consented  to  waive  the  privilege  of  sovereignty.  It  con- 
tained no  stipulation  that  these  regulations  should  not  be  modified  after- 
wards, if,  upon  experience,  it  was  found  that  further  provisions  were  neces- 
sary to  protect  the  public  interest ;  and  no  such  contract  can  be  implied 
from  the  law,  nor  can  this  court  inquire  whether  the  law  operated  hardly 
or  unjustly  upon  the  parties  whose  suits  were  then  pending.  That  was 
a  question  for  the  consideration  of  the  Legislature.  They  might  have  re- 
pealed the  prior  law  altogether,  and  put  an  end  to  the  jurisdiction  of  their 
courts  in  suits  against  the  State,  if  they  had  thought  proper  to  do  so,  or 
prescribe  new  conditions  upon  which  the  suits  might  still  be  allowed  to 
proceed.  In  exercising  this  latter  power,  the  State  violated  no  contract 
with  the  parties ;  it  merely  regulated  the  proceedings  in  its  own  courts,  and 
limited  the  jurisdiction  it  had  before  conferred  in  suits  when  the  State  con- 
sented to  be  a  party  defendant.2 

In  like  manner,  the  State  having  a  right  to  appear  in  court  and  sue  natu- 
rally determines  when  it  shall  exercise  that  right.  Otherwise,  the  possession 
of  the  right  would  be  an  empty  privilege.  This  was  briefly  but  adequately 
stated  in  the  case  of  Clark  v.  Barnard  (108  U.  S.,  436,  447-8),  decided  by 

'20  Howard,  529. 
1  Ibid.,  529-30. 


IMMUNITY   OF    STATES    AND    NATIONS    FROM    SUIT  459 

the  Supreme  Court  in  1883,  in  which  Mr.  Justice  Matthews,  speaking  for 
a  unanimous  court,  said : 

The  immunity  from  suit  belonging  to  a  State,  which  is  respected  and 
protected  by  the  Constitution  within  the  limits  of  the  judicial  power  of  the 
United  States,  is  a  personal  privilege  which  it  may  waive  at  pleasure;  so 
that  in  a  suit,  otherwise  well  brought,  in  which  a  State  had  sufficient  inter- 
est to  entitle  it  to  become  a  party  defendant,  its  appearance  in  a  court  of  the 
United  States  would  be  a  voluntary  submission  to  its  jurisdiction ;  while, 
of  course,  those  courts  are  always  open  to  it  as  a  suitor  in  controversies 
between  it  and  citizens  of  other  States.  In  the  present  case  the  State  of 
Rhode  Island  appeared  in  the  cause  and  presented  and  prosecuted  a  claim 
to  the  fund  in  controversy,  and  thereby  made  itself  a  party  to  the  litigation 
to  the  full  extent  required  for  its  complete  determination.  It  became  an  actor 
as  well  as  defendant.  .  .  . 

If,  however,  the  State  appears,  it  waives  its  immunity  to  the  extent  of 
its  appearance,  and  judgment  may  be  had  against  it  to  this  extent.  It  may, 
for  example,  decide  it  to  be  in  its  interest  to  object  to  the  jurisdiction  of  the 
court.  If  it  appear  for  this  purpose  it  is  and  can  only  be  a  party  to  that 
extent.  For,  being  exempt  from  process,  it  determines  for  itself  the  extent  to 
which  it  can  safely  renounce  the  immunity  inherent  in  sovereignty,  and  that 
is  withdrawn  from  the  court  which  the  State  has  not  authorized  it  to  exer- 
cise. In  The  Siren  (7  Wallace,  152),  decided  in  1868,  the  Supreme  Court 
had  occasion  to  consider  not  merely  the  general  question  but  a  specific 
application  of  it.  The  vessel  was  captured  in  the  harbor  of  Charleston  in 
February,  1865,  in  the  attempt  to  violate  the  blockade  of  that  port.  It  was 
put  in  charge  of  a  prize  master  and  crew  and  ordered  to  Boston  for  adjudica- 
tion. Passing  through  Long  Island  Sound,  it  ran  into  and  sank  the  sloop 
Harper.  The  court  found  that  the  collision  was  the  fault  of  the  Siren. 
Arriving  at  Boston,  the  Siren  was  libeled,  condemned  as  lawful  prize,  sold, 
and  the  proceeds  were  deposited  with  the  Assistant  Treasurer  of  the  United 
States  in  compliance  with  an  act  of  Congress,  where  they  remained  subject 
to  the  order  of  the  court. 

In  this  state  of  affairs,  the  owners  of  the  Harper  claimed  a  portion  of  the 
fund  because  of  the  collision,  due  to  the  fault  of  the  Siren,  and  intervened 
by  petition  for  this  purpose.  On  the  general  phase  of  the  question,  Mr.  Jus- 
tice Field  said : 

It  is  a  familiar  doctrine  of  the  common  law,  that  the  sovereign  cannot 
be  sued  in  his  own  courts  without  his  consent.  The  doctrine  rests  upon 
reasons  of  public  policy ;  the  inconvenience  and  danger  which  would  follow 
from  any  different  rule.  It  is  obvious  that  the  public  service  would  be 
hindered,  and  the  public  safety  endangered,  if  the  supreme  authority  could 
be  subjected  to  suit  at  the  instance  of  every  citizen,  and  consequently  con- 


460  THE    UNITED   STATES:   A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

trolled  in  the  use  and  disposition  of  the  means  required  for  the  proper 
administration  of  the  government.  The  exemption  from  direct  suit  is, 
therefore,  without  exception.  This  doctrine  of  the  common  law  is  equally 
applicable  to  the  supreme  authority  of  the  nation,  the  United  States.  They 
cannot  be  subjected  to  legal  proceedings  at  law  or  in  equity  without  their 
consent;  and  whoever  institutes  such  proceedings  must  bring  his  case  within 
the  authority  of  some  act  of  Congress.  Such  is  the  language  of  this  court  in 
United  Slates  v.  Clarke.     [8  Peters,  444.] 

The  same  exemption  from  judicial  process  extends  to  the  property  of 
the  United  States,  and  for  the  same  reasons.  As  justly  observed  by  the 
learned  judge  who  tried  this  case,  there  is  no  distinction  between  suits 
against  the  government  directly,  and  suits  against  its  property.1 

But,  while  this  is  no  doubt  true,  the  learned  Justice,  speaking  for  the  court, 
recognized  that  it  was  a  harsh  doctrine,  that  it  should  not  be  extended  beyond 
the  principle,  and  that  exceptions  should  be  allowed  to  it  in  the  interest  of 
justice,  where  such  exceptions  were  consistent  with  principle  or  sanctioned 
by  practice.  He  therefore  continued: 

But  although  direct  suits  cannot  be  maintained  against  the  United  States, 
or  against  their  property,  yet,  when  the  United  States  institute  a  suit,  they 
waive  their  exemption  so  far  as  to  allow  a  presentation  by  the  defendant  of 
set-offs,  legal  and  equitable,  to  the  extent  of  the  demand  made  or  property 
claimed,  and  when  they  proceed  in  rem,  they  open  to  consideration  all  claims 
and  equities  in  regard  to  the  property  libelled.  They  then  stand  in  such 
proceedings,  with  reference  to  the  rights  of  defendants  or  claimants,  pre- 
cisely as  private  suitors,  except  that  they  are  exempt  from  costs  and  from 
affirmative  relief  against  them,  beyond  the  demand  or  property  in  con- 
troversy .- 

Referring  to  the  particular  case,  Mr.  Justice  Field  stated  that  in  ad- 
miralty law  a  lien  is  created  in  favor  of  the  injured  party  against  the  vessel 
in  fault,  and  that  the  inability  of  the  private  person  to  enforce  the  lien  against 
the  Government,  without  its  consent,  does  not  invalidate  the  claim ;  but  only 
prevents  its  allowance  in  an  ordinary  judicial  proceeding.  For  this  he  refers 
to  the  adjudged  cases  of  English  and  American  courts,  holding  that  a  court 
would  enforce  a  mortgage  upon  land  conveyed  by  the  Government,  which  the 
Government  had  taken  subject  to  the  mortgage  of  the  previous  owner;  and 
that  claims  would  be  enforced  by  judicial  process  against  the  proceeds  of 
property  belonging  to  the  Government,  but  which  had  been  sold,  under  decree 
of  the  court,  and  the  proceeds  placed  within  its  jurisdiction.  After  stating 
that,  in  accordance  with  the  principles  of  maritime  law,  claims  upon  a  vessel 
extend  equally  to  and  are  satisfied  out  of  the  proceeds  of  the  sale,  the  learned 
Justice  thus  applies  this  doctrine  to  the  facts  of  the  Siren: 

'  7  Wallace,  153-4. 
2  Ibid..  154. 


IMMUNITY  OF   STATES   AND    NATIONS    FROM    SUIT  461 

Assuming,  therefore,  that  the  Siren  was  in  fault,  and  that  by  the  tort  she 
committed  a  claim  was  created  against  her,  we  do  not  perceive  any  just 
ground  tor  refusing  its  satisfaction  out  of  the  proceeds  of  her  sale.  The 
government  is  the  actor  in  the  suit  for  her  condemnation.  It  asks  for  her 
sale,  and  the  proceeds  coming  into  the  registry  of  the  court,  come  affected 
with  all  the  claims  which  existed  upon  the  vessel  created  subsequent  to  her 
capture  There  is  no  authority,  that  we  are  aware  of,  which  would  exempt 
them  under  these  circumstances,  because  of  the  exemption  of  the  govern- 
ment from  a  direct  proceeding  in  rem  against  the  vessel  whilst  in  its  custody.1 

In  support  of  these  views,  he  refers  to  United  States  v.  Wilder  (3  Sum- 
ner, 308),  decided  in  1838,  in  which  Mr.  Justice  Story,  sitting  at  circuit, 
held,  to  quote  Mr.  Justice  Field's  summary  of  the  case,  that  "  goods  of  the 
United  States  were  subject  to  contribution,  equally  with  goods  of  private 
shippers,  to  meet  the  expenses  incurred  in  saving  them;  "  and  also  to  the  case 
of  The  Schooner  Davis  and  Cargo  (6  Blatchford,  138),  decided  in  1868  in  the 
circuit  court  for  the  southern  district  of  New  York,  which  was  later,  upon 
appeal,  affirmed  by  the  Supreme  Court  of  the  United  States  (10  Wallace, 
15),  in  1869.  In  the  case  upon  appeal  it  was  held  that,  to  meet  salvage  services 
in  saving  vessel  and  cargo,  cotton  belonging  to  the  United  States  was  liable 
to  contribution  as  would  have  been  the  property  of  private  persons.  After 
referring  to  The  Siren  (7  Wallace,  152)  and  Briggs  v.  The  Light  Boats 
(11  Allen,  157),  "  as  perhaps  the  two  most  authoritative  and  well  considered 
cases  on  that  subject,"  Mr.  Justice  Miller  thus  concluded  his  opinion  on  behalf 
of  a  unanimous  court: 

The  United  States,  without  any  violation  of  law  by  the  marshal,  was 
reduced  to  the  necessity  of  becoming  claimant  and  actor  in  the  court  to  assert 
her  claim  to  the  cotton.  Under  these  circumstances  we  think  it  was  the 
duty  of  the  court  to  enforce  the  lien  of  the  libellants  for  the  salvage  before 
it  restored  the  cotton  to  the  custody  of  the  officers  of  the  government.2 

Cotton  not  only  troubled  the  American  but  the  English  courts,  in  which 
the  United  States  of  America  appeared  as  plaintiff  in  order  to  recover  the 
property  of  the  Confederacy  found  within  the  jurisdiction  of  England.  The 
Confederate  States  had  entered  into  a  contract  with  the  firm  of  Fraser, 
Trenholm  &  Co.,  of  which  Prioleau  was  the  English  member,  by  virtue  of 
which  it  was  to  sell  all  the  cotton  of  the  Confederacy  sent  to  Europe,  to  buy 
eight  steamships  to  be  engaged  in  the  transportation  of  the  cotton  and  to 
pay  out  of  that  very  necessary  commodity  the  expenses  incident  to  the  con- 
tract and  the  undertaking,  advancing  in  first  instance  the  necessary  moneys. 
Twenty  thousand  pounds  had  already  been  expended  for  this  purpose.     A 

'7  Wallace,  159. 
■  10  Wallace,  22. 


462 


THE   UNITED  STATES  :  A   STUDY   IN    INTERNATIONAL   ORGANIZATION 


A   Plaintiff 
Sovereign 
Relinquishes 
a  Degree  of 
Sovereignty 


particular  consignment  of  1365  bales  of  cotton  had  been  received  in  Liver- 
pool after  the  collapse  of  the  Confederacy,  and  the  United  States  filed  its 
bill  in  the  court  of  chancery,  praying  to  have  the  cotton  delivered  to  its 
agents  and  for  an  injunction  and  receiver. 

Leaving  out  the  very  interesting  points  discussed  in  the  argument  and 
decision  of  this  case,  it  is  sufficient  for  present  purposes  to  state  that  the 
court  decreed  that  the  United  States  was  entitled  to  the  cotton  by  the  law 
of  succession,  and  that  it  was  therefore  the  property  of  the  United  States 
government,  but  that  it  must  take  it  subject  to  the  obligations  entered  into 
respecting  it  by  the  de  facto  Confederate  government.  The  defendant,  Prio- 
leau,  was  therefore  appointed  receiver,  with  power  to  sell  the  cotton;  but 
he  was  properly  required  to  give  security  for  its  value  beyond  £20,000,  that 
being  the  amount  of  the  defendant's  lien  (2  H.  &  M.,  559). 

If  the  matter  had  ended  here,  this  case  would  not  be  cited,  as  we  are  deal- 
ing with  States  not  as  plaintiffs  but  as  defendants,  for  it  is  universally  ad- 
mitted that  a  sovereign  can  sue.  We  say,  off-hand,  that  one  story  is  good 
until  another  is  told.  The  same  is  true  in  courts.  The  case  of  the  United 
States  was  clear  until  Prioleau  told  his  story,  which  he  did  by  filing  a  cross- 
bill to  obtain  discovery  from  the  United  States,  as  a  private  suitor  would  be 
required  to  give  under  the  circumstances.  Therefore,  in  the  second  phase 
of  this  case,  entitled  Prioleau  v.  United  States  and  Andrew  Johnson  (2  Law 
Rep.,  Eq.,  659),  decided  in  1866,  Vice-Chancellor  Page  Wood,  later  Lord 
Chancellor  Hatherley,  held  that  the  United  States,  suing  in  an  English  court, 
subjected  itself  to  the  jurisdiction  of  the  Court;  that  it  stood  in  the  same 
position  as  a  foreign  sovereign,  and  that  it  could  only  obtain  relief  subject  to 
the  rules  of  practice  of  the  court  in  which  it  sued,  according  to  which  every 
suitor,  be  he  a  private  suitor,  a  foreign  sovereign,  or  a  corporate  body,  is 
entitled  to  discovery  upon  oath  concerning  the  matters  of  the  suit,  and  to  file 
a  cross-bill  for  the  purpose  of  obtaining  such  discovery.  Proceedings  were 
therefore  stayed  in  the  case  of  Prioleau  v.  The  United  States,  suing  in  its 
corporate  capacity,  until  an  answer  should  be  put  in  to  the  cross-bill  of  the 
defendant. 

In  the  course  of  his  decree,  Vice-Chancellor  Wood  intimated  that  a 
demurrer  should  have  been  filed  to  the  bill  of  the  United  States  in  that  cause, 
as  no  public  officer  was  put  forward  as  representing  its  interests  or  who 
could  be  called  upon  to  give  discovery  upon  the  cross-bill.  Taking  advantage 
of  this  decision,  in  the  case  of  United  States  v.  Wagner  (2  Law  Rep.,  Chan- 
cery App.  Cases,  582),  decided  in  1867,  the  defendant,  Wagner,  demurred 
to  the  bill,  praying  that  an  account  be  taken  of  the  moneys,  goods  and  ships 
which  had  come  into  the  possession  of  the  defendants  and  which  were 
claimed  by  the  United  States  as  successor  to  the  Confederacy,  on  the  ground 


IMMUNITY   OF    STATES    AND    NATIONS    FROM    SUIT  463 

that  it  should  have  put  forward  the  President  of  the  United  States  or  some 
other  official  of  that  Government  upon  whom  process  could  be  served  by  the 
defendants  and  who  might  answer  to  the  cross-bill.  The  demurrer  was 
allowed  by  Vice  Chancellor  Wood,  but  from  this  decree  the  plaintiffs  ap- 
pealed. In  the  course  of  very  interesting  individual  opinions,  it  was  held  by 
Lord  Chancellor  Chelmsford  and  the  great  Lord  Cairns,  destined  shortly 
to  succeed  him  as  Lord  Chancellor,  that  a  foreign  State  adopting  the  repub- 
lican form  of  government  can  sue  in  the  courts  of  Great  Britain  in  its  own 
name;  that  such  a  State  is  not  bound  to  sue  in  the  name  of  any  officer  of  the 
Government  or  to  join  as  co-plaintiff  any  official  of  the  Government,  or 
to  join  as  co-plaintiff  any  other  official  upon  whom  process  may  be  served 
and  who  may  be  called  upon  to  give  discovery  upon  a  cross-bill;  but  that 
the  court  may  stay  proceedings  in  the  original  dispute  until  the  means  of 
discovery  are  secured  in  the  cross  suit. 

In  what  may  be  called  the  third  and  final  phase  of  this  suit,  for  although 
the  three  were  separated  in  form  they  were  related  in  fact,  United  States  of 
America  v.  McRae  (8  Law  Rep.,  Eq.,  69),  decided  in  1869,  Vice  Chancellor 
James  thus  disposed  of  the  entire  matter,  for  the  reasons  briefly  stated  in 
the  head-note  to  the  case : 

Upon  the  suppression  of  a  rebellion,  the  restored  legitimate  government 
is  entitled,  as  of  right,  to  all  moneys,  goods,  and  treasure  which  were  pub- 
lic property  of  the  government  at  the  time  of  the  outbreak ;  such  right  being 
in  no  way  affected  by  the  wrongful  seizure  of  the  property  by  the  usurping 
government. 

But  with  respect  to  property  which  has  been  voluntarily  contributed  to, 
or  acquired  by,  the  insurrectionary  government  in  the  exercise  of  its  usurped 
authority,  and  has  been  impressed  in  its  hands  with  the  character  of  public 
property,  the  legitimate  government  is  not,  on  its  restoration,  entitled  by 
title  paramount,  but  as  successor  only  (and  to  that  extent  recognising  the 
authority)  of  the  displaced  usurping  government;  and  in  seeking  to  recover 
such  property  from  an  agent  of  the  displaced  government  can  only  do  so  to 
the  same  extent  and  subject  to  the  same  rights  and  obligations  as  if  that 
government  had  not  been  displaced,  and  was  itself  proceeding  against  the 
agent. 

Therefore,  a  bill  by  the  United  States  government,  after  the  suppres- 
sion of  the  rebellion,  against  an  agent  of  the  late  Confederate  government, 
for  an  account  of  his  dealings  in  respect  of  the  Confederate  loan,  which  he 
was  employed  to  raise  in  this  country,  was  dismissed  with  costs ;  in  the 
absence  of  proof  that  any  property  to  which  the  Plaintiffs  were  entitled  in 
their  own  right,  as  distinguished  from  their  right  as  successors  of  the  Con- 
federate government,  ever  reached  the  hands  of  the  Defendant,  and  on  the 
Plaintiffs  declining  to  have  the  account  taken  on  the  same  footing  as  if  taken 
between  the  Confederate  government  and  the  Defendant  as  the  agent  of  such 
government,  and  to  pay  what  on  the  footing  of  such  account  might  be  found 
due  from  them. 


464 


THE  UNITED  STATES:   A   STUDY    IN    INTERNATIONAL  ORGANIZATION 


The 

Sovereign 
Becomes 
Subordinate 
to  Law 


Further 
Renunciation 
of   Immunity 
from    Suit 
by  a 

Sovereign 
Power 


From  these  cases,  purposely  chosen  from  a  foreign  jurisdiction,  it  ap- 
pears :  that  a  foreign  State  may  freely  sue,  but  that,  in  doing  so,  it  waives  its 
sovereignty  as  such  for  the  purposes  and  to  the  extent  of  the  suit;  that  it 
can  only  claim  rights  against  the  defendant  accorded  to  a  private  suitor;  that 
it  must  recognize  the  rights  of  the  defendant  according  to  the  laws  of  the 
country  in  which  the  suit  is  brought  and  that  it  may  be  made  a  defendant  in  a 
cross-bill  or  other  action  springing  out  of  the  transaction.  It  is  interesting 
to  note  in  this  case,  that  the  illustrious  plaintiff,  having  failed  to  comply  with 
the  local  law  of  which  it  sought  the  benefit,  was  taxed  in  costs  as  any  other 
unsuccessful  or  unwilling  litigant. 

In  view  of  the  fact  that  a  sovereign  waives  its  immunity  by  appearing  as 
plaintiff  in  a  court  of  justice,  and  of  the  further  fact  that  in  asking  justice, 
it  is  obliged  to  do  it  at  the  instance  of  a  defendant,  the  question  arises 
whether  a  State,  stepping  down  from  the  pedestal  of  a  sovereign  by  engaging 
in  industry  or  trade,  may  not,  because  thereof,  be  held  to  renounce  its  im- 
munity from  suit  and  subject  itself  to  suit  as  a  corporation  or  private  person 
would  be  subjected  in  like  circumstances.  This  question  has  been  much  dis- 
cussed, and  must  be  decided  if  the  State  as  such  is,  in  the  future  as  in  the 
past,  to  enter  into  competition  with  its  subjects  or  citizens  in  the  ordinary 
business  of  life. 

Thus,  in  Batik  of  United  States  v.  Planters'  Bank  of  Georgia  (9  Wheaton, 
904,  907-8)  decided  as  long  ago  as  1824,  Mr.  Chief  Justice  Marshall  said: 

It  is,  we  think,  a  sound  principle,  that  when  a  government  becomes  a 
partner  in  any  trading  company,  it  divests  itself,  so  far  as  concerns  the 
transactions  of  that  company,  of  its  sovereign  character,  and  takes  that  of 
a  private  citizen.  Instead  of  communicating  to  the  company  its  privileges 
and  its  prerogatives,  it  descends  to  a  level  with  those  with  whom  it  associates 
itself,  and  takes  the  character  which  belongs  to  its  associates,  and  to  the 
business  which  is  to  be  transacted.  Thus,  many  States  of  this  Union,  who 
have  an  interest  in  Banks,  are  not  suable  even  in  their  own  Courts;  yet  they 
never  exempt  the  corporation  from  being  sued.  The  State  of  Georgia,  by 
giving  to  the  Bank  the  capacity  to  sue  and  be  sued,  voluntarily  strips  itself 
of  its  sovereign  character,  so  far  as  respects  the  transactions  of  the  Bank, 
and  waives  all  the  privileges  of  that  character.  As  a  member  of  a  corpora- 
tion, a  government  never  exercises  its  sovereignty.  It  acts  merely  as  a 
corporator,  and  exercises  no  other  power  in  the  management  of  the  affairs 
of  the  corporation,  than  are  expressly  given  by  the  incorporating  act. 

The  government  of  the  Union  held  shares  in  the  old  Bank  of  the  United 
States ;  but  the  privileges  of  the  government  were  not  imparted  by  that 
circumstance  to  the  Bank.  The  United  States  was  not  a  party  to  suits 
brought  by  or  against  the  Bank  in  the  sense  of  the  constitution.  So  with 
respect  to  the  present  Bank.  Suits  brought  by  or  against  it  are  not  under- 
stood to  be  brought  by  or  against  the  United  States.  The  government,  by 
becoming  a  corporator,  lays  down  its  sovereignty,  so  far  as  respects  the  trans- 
actions of  the  corporation,  and  exercises  no  power  or  privilege  which  is  not 
derived   from   the  charter. 


IMMUNITY    OF    STATES    AND    NATIONS    FROM    SUIT  465 

We  think,  then,  that  the  Planters'  Bank  of  Georgia  is  not  exempted 
from  being  sued  in  the  federal  Courts,  by  the  circumstance  that  the  State 
is  a  corporator. 

But,  in  national  as  well  as  in  international  law,  the  United  States  is  not   a  state 

May  Sue 

subject  to  suit  without  its  consent,  either  at  the  instance  of  a  citizen  or  State 
subject,  of  a  foreign  citizen  or  subject,  or  of  a  foreign  State  or  nation;  but, 
by  the  Constitution  of  the  United  States,  State  may  sue  State,  and  has  often 
done  so.1  As  originally  drafted  and  as  construed  by  the  Supreme  Court,  a 
citizen  of  one  of  the  States  could  sue  another  State  of  the  Union;  but  its 
exercise  in  the  case  of  Chisholm  v.  Georgia  (2  Dallas,  415),  decided  in  1793, 
led  to  the  passage  of  the  11th  Amendment,  to  the  effect  that  the  judicial 
power  of  the  United  States  should  not  extend  to  such  a  suit.  The  United 
States  may  sue  a  State  of  the  American  Union.  The  United  States  are,  for 
purposes  of  suit,  regarded  as  a  State  within  the  meaning  of  the  Constitution, 
as  solemnly  adjudged  in  United  States  v.  Texas  (143  U.  S.,  621),  decided  in 
1892;  but  it  is  equally  well  settled  that  the  Government  of  the  United  States 
is  not  made  by  the  Constitution  suable,  without  express  consent,  by  State  or 
citizen.  However,  by  various  acts  of  Congress,  the  Federal  Government  has 
consented  to  be  sued,  in  a  limited  category  of  cases,  in  the  Court  of  Claims, 
created  in  1855  for  this  purpose.  These  acts  are  in  terms  broad  enough  to) 
include  States  as  well  as  private  persons.  As  amended  in  1912,  they  thus 
define  and  state  the  jurisdiction  of  the  present  Court  of  Claims: 

Sec.  145.  The  Court  of  Claims  shall  have  jurisdiction  to  hear  and 
determine    the    following   matters: 

First.  All  claims  (except  for  pensions)  founded  upon  the  Constitu- 
tion of  the  United  States  or  any  laws  of  Congress,  upon  any  regulation  of 
an  Executive  Department,  upon  any  contract,  express  or  implied,  with  the 
Government  of  the  United  States,  or  for  damages,  liquidated  or  unliquidated, 
in  cases  not  sounding  in  tort,  in  respect  of  which  claims  the  party  would  be 
entitled  to  redress  against  the  United  States  either  in  a  court  of  law,  equity, 
or  admiralty  if  the  United  States  were  suable.  .   .   . 

Second.  All  set-offs,  counterclaims,  claims  for  damages,  whether  liqui- 
dated or  unliquidated,  or  other  demands  whatsoever  on  the  part  of  the  Gov- 
ernment of  the  United  States  against  any  claimant  against  the  Government 
in  said  court.2 

1  For  collection  of  cases,  see  J.  B.  Scott,  Judicial  Settlement  of  Controversies  Between 
States,  2  vols. 

'  36  Statutes  at  Large,  1136-7. 


XXIII 
A  MORE  PERFECT  SOCIETY  OF  NATIONS 

It  is  a  favourite  maxim  of  mine  that  history,  while  it  should  be  scientific  in  its  method, 
should  pursue  a  practical  object.  That  is,  it  should  not  merely  gratify  the  reader's  curiosity 
about  the  past,  but  modify  his  view  of  the  present  and  his  forecast  of  the  future.  (Sir 
John  R.  Seeley",  The  Expansion  of  England,  American  edition,  1883,  p.  1.) 

To  be  right,  to  set  for  the  world  a  standard  of  true  liberty  and  true  justice:  that  is  the 
great  mission  of  democracy !   .    .    . 

...  It  is  for  us  whose  lives  are  cast  in  such  lines  that  we  can  see  and  feel  the 
difference  between  that  high  function  and  the  ordinary  things  of  life,  to  teach  our  friends 
and  neighbors  the  secret  of  the  great  judgment  of  our  free  democracy,  that  they  may 
reverence  it  and  preserve  it  always.  (Elihu  Root,  The  Spirit  Which  Makes  a  Nation  Live, 
Addresses  on  Government  and  Citizenship,  1916,  pp.  500-502.) 

We  wish  for  no  victories  but  those  of  peace;  for  no  territory  except  our  own;  for  no 
sovereignty  except  sovereignty  over  ourselves.  We  deem  the  independence  and  equal 
rights  of  the  smallest  and  weakest  member  of  the  family  of  nations  entitled  to  as  much 
respect  as  those  of  the  greatest  empire;  and  we  deem  the  observance  of  that  respect  the 
chief  guaranty  of  the  weak  against  the  oppression  of  the  strong.  We  neither  claim  nor 
desire  any  rights  or  privileges  or  powers  that  we  do  not  freely  concede  to  every  American 
republic.  We  wish  to  increase  our  prosperity,  to  expand  our  trade,  to  grow  in  wealth, 
in  wisdom,  and  in  spirit;  but  our  conception  of  the  true  way  to  accomplish  this  is  not  to 
pull  down  others  and  profit  by  their  ruin,  but  to  help  all  friends  to  a  common  prosperity 
and  a  common  growth,  that  we  may  all  become  greater  and  stronger  together.  (Elihu 
Root,  Address  to  the  Third  Conference  of  the  American  Republics  at  Rio  de  Janeiro, 
July  31,  1906,  Latin  America  and  the  United  States,  1017,  p.  10.) 

There  are  no  international  controversies  so  serious  that  they  cannot  be  settled  peaceably 
if  both  parties  really  desire  peaceable  settlement,  while  there  are  few  causes  of  dispute  so 
trifling  that  they  cannot  be  made  the  occasion  of  war  if  either  party  really  desires  war. 
The  matters  in  dispute  between  nations  are  nothing;  the  spirit  which  deals  with  them  is 
everything.  (Elihu  Root,  Address  at  the  Laying  of  the  Corner  Stone  of  the  Building  for 
the  Pan  American  Union,  Washington,  May  11,  1908,  in  Latin  America  and  the  United 
States,  1917,  pp.  230-231.) 

It  is  the  proper  end  of  government  to  reduce  this  wretched  waste  to  the  smallest  possible 
amount,  by  taking  such  measures  as  shall  cause  the  energies  now  spent  by  mankind  in 
injuring  one  another,  or  in  protecting  themselves  against  injury,  to  be  turned  to  the 
legitimate  employment  of  the  human  faculties,  that  of  compelling  the  powers  of  nature  to 
be  more  and  more  subservient  to  physical  and  moral  good.  (John  Stuart  Mill,  Principles 
of  Political  Economy,  1S48,  Vol.  2,  p.  560.) 


466 


CHAPTER  XXIII 


A    MORE    PERFECT    SOCIETY    OF    NATIONS 


The  Society  of  Nations  is  approximately  composed  of  fifty  States  claim-  The 
ing  to  be  sovereign,  free  and  independent.  The  more  perfect  Union  of  the  Problem 
United  States  is  composed  of  forty-eight  States.  The  official  delegates  of 
twelve  of  the  then  thirteen  sovereign,  free  and  independent  American  States 
who  met  in  Federal  Convention  in  the  city  of  Philadelphia  in  1787,  were 
faced  by  the  problems  which  confront  every  international  conference  in  which 
an  attempt  is  made  to  bring  and  to  keep  the  nations  in  closer  relations.  The 
greatest  of  these  problems  is  that  of  renouncing  in  the  common  interest  the 
exercise  of  certain  sovereign  rights,  while  retaining  unimpaired  the  exercise 
of  all  sovereign  rights  not  so  renounced.  The  line  of  demarkation  between 
what  may  be  safely  renounced  in  the  interest  of  all  and  what  it  is  essential 
to  retain  in  the  interest  of  each  is  always  difficult  to  draw.  That  the  prob- 
lem is  in  itself  not  insuperable  is  shown  by  the  success  of  those  delegates  of 
twelve  of  the  thirteen  American  States,  for,  as  Benjamin  Franklin,  a  dele- 
gate from  the  State  of  Pennsylvania,  said,  "  we  had  many  interests  to 
reconcile."  The  delegates  to  that  memorable  assembly  established  in  fact  and 
in  form,  a  union  for  legislative  purposes,  a  union  for  administrative  pur- 
poses, and  a  union  for  judicial  purposes,  which,  taken  together  and  acting 
in  cooperation  as  they  must,  since  each  depends  upon  the  other,  form  a  more 
perfect  Union  than  that  of  the  Society  of  Nations. 

The  delegates  in  Federal  Convention  did  not  merge  the  States  in  a  union, 
but  formed  a  union  of  the  States.  They  vested  the  legislative  branch 
with  eighteen  powers  of  legislation  only,  so  that  the  Union  is  from  this 
standpoint  one  of  enumerated  powers  merely.  The  executive  branch  of  the 
Union  possesses  no  powers  save  those  specified  in  the  instrument  of  its  crea- 
tion, and  any  attempt  on  the  part  of  the  legislative  or  the  executive  branch  to 
exercise  powers  in  excess  of  the  grant  contained  in  the  Constitution  is  de- 
clared null  and  void  and  of  no  effect  by  the  judicial  branch  of  the  Union.  An 
attempt  on  the  part  of  the  Union  to  exercise  a  power  in  excess  of  the  grant 
is,  in  an  appropriate  and  specific  case  presented  for  its  decision,  declared  to 
be  null,  void  and  of  no  effect  by  the  Supreme  Court  of  the  United  States. 
This  is  accomplished  without  the  use  of  force  against  the  Union  on  the  part 

467 


A 


468  THE  UNITED   STATES:   A   STUDY   IN    INTERNATIONAL  ORGANIZATION 

of  a  State  or  combination  of  States.     Only  the  individual  is  coerced.     The 
statute  may  remain  unrepealed,  for  it  has  ceased  to  possess  legal  validity. 

The    Society    of    Nations   may    not    be    willing,    and    indeed    even    with 

good  will  may  not  be  able,  to  go  so  far  now  or  at  any  time  as  have  the 

States  forming  the  American  Union.    But  however  many  steps  they  may  take 

Possible  or  however  few  toward  the  closer  Union,  the  experience  of  the  framers  of 

Solution  r 

the  Constitution  who  traversed  the  entire  path  should  be  as  a  lamp  to  their 
feet. 

Yet  we  must  not  imagine  that  the  Society  of  Nations  is  a  mere  phrase.  It 
is  a  body  politic  if  it  care  to  consider  itself  as  such,  for  which  statement  we 
have  the  authority  of  Rcspublica  v.  Stveers  (1  Dallas,  41),  decided  by  the 
Supreme  Court  of  Pennsylvania  in  1779,  at  a  time  when  the  Articles  of 
Confederation  were  still  unratified,  the  court  saying  that  "  from  the  moment 
of  their  association  the  United  States  necessarily  became  a  body  corporate; 
for,  there  was  no  superior  from  whom  that  character  could  otherwise  be  de- 
rived." On  two  occasions,  in  1899  twenty-six  nations  and  in  1907  forty-four 
nations  solemnly  recognized  in  the  Pacific  Settlement  Convention  of  The 
Hague  "  the  solidarity  which  unites  the  members  of  the  society  of  civilized 
nations,"  thus  bringing  the  Society  of  Nations  within  the  rule  of  law  defining 
the  association  of  the  American  States.  They  can,  if  they  will,  frame  the  law 
for  the  Society  through  delegates  of  their  own  choice  meeting  in  conference 
at  stated  intervals  and  submitting  the  draft  of  their  labors  for  ratification  to 
each  of  the  States  participating  in  the  conference,  thus  making  of  themselves 
a  legislature  ad  referendum.  In  like  manner  delegates  of  the  Nations  may  in 
conference  assembled  establish  a  court  of  the  Nations,  for  which  they  have  a 
precedent  in  the  Supreme  Court  of  the  American  Union,  which  can  declare 
and  apply  the  law  of  Nations  now  existing  or  as  made  by  their  delegates  in 
conference  and  ratified  by  each  of  the  Nations.  Delegates  of  twenty-six 
Nations  in  1899,  delegates  of  forty-four  Nations  in  1907  in  the  Pacific  Set- 
tlement Convention  declared  it  to  be  "  expedient  to  record  in  an  international 
agreement  the  principles  of  equity  and  right  on  which  are  based  the  security 
of  States  and  the  welfare  of  peoples."  It  can  be  added  that  an  interna- 
tional court  of  justice  "  accessible  to  all  in  the  midst  of  the  independent 
Powers  "  would  not  only  extend  "  the  empire  of  law  "  and  strengthen  "  the 
appreciation  of  international  justice,"  but  to  quote  still  further  from  the 
Pacific  Settlement  Convention  of  1899  and  1907,  that  it  would  also  make  for 
"  the  maintenance  of  the  general  peace." 

Should  the  Powers  desire,  they  may  take  a  third  and  further  step  by 
vesting  their  diplomatic  representatives  residing  in  any  city,  such  as  The 
Hague,  under  the  presidency  of  the  resident  minister  of  foreign  affairs, 
with  such  powers  of  supervision  and  of  initiative  as  to  them   shall   seem 


A    MORE    PERFECT   SOCIETY   OF    NATIONS  469 

meet  and  proper.  The  delegates  of  the  Nations  may,  if  they  are  willing, 
enter  into  a  more  perfect  Union,  and  in  conference  assembled  render 
the  Society  of  Nations,  as  delegates  in  convention  rendered  the  Articles  of 
Confederation,  "  adequate  to  the  exigencies  of  government  and  the  preserva- 
tion of  the  Union." 


APPENDIX 

A.     PLANS  OF  UNION  FOR  THE  COLONIES  AND  THE  STATES 

OF  NORTH  AMERICA.1 

I.     THE  NEW  ENGLAND  CONFEDERATION  OF  1643  - 
Articles  of  Confederation   (ratified  September  7,  1643). 

ARTICLES 

of 

Confederation  betwixt  the   Plantations   under  the   Government  of  the 

Massachusets,  the  Plantations  under  the  Government  of  Plimouth, 

the  Plantations  under  the  Government  of  Conncctccut,  and  the 

Government  of  New  Haven,  with  the  Plantations  in 

Combination  therewith. 

Whereas  we  all  came  into  these  parts  of  America,  with  one  and  the  same  end 
and  ayme,  namely,  to  advance  the  Kingdome  of  our  Lord  Jesus  Christ,  and  to 
enjoy  the  liberties  of  the  Gospel,  in  purity  with  peace ;  and  whereas  in  our  settling 
(by  a  wise  providence  of  God)  we  are  further  dispersed  upon  the  Sea-Coasts, 
and  Rivers,  then  was  at  first  intended,  so  that  we  cannot  (according  to  our  desire) 
with  convenience  communicate  in  one  Government,  and  Jurisdiction  ;  and  whereas 
we  live  encompassed  with  people  of  severall  Nations,  and  strange  languages, 
which  hereafter  may  prove  injurious  to  us,  and  our  posterity:  And  forasmuch 
as  the  Natives  have  formerly  committed  sundry  insolencies  and  outrages  upon 
severall  Plantations  of  the  English,  and  have  of  late  combined  themselves  against 
us.  And  seeing  by  reason  of  the  sad  distractions  in  England,  which  they  have 
heard  of,  and  by  which  they  know  we  are  hindred  both  from  that  humble  way  of 
seeking  advice,  and  reaping  those  comfortable  fruits  of  protection  which,  at  other 
times,  we  might  well  expect ;  we  therefore  doe  conceive  it  our  bounden  duty,  with- 
out delay,  to  enter  into  a  present  Consotiation  amongst  our  selves,  for  mutuall 
help  and  strength  in  all  our  future  concernments,  that,  as  in  Nation,  and  Reli- 
gion, so,  in  other  respects,  we  be,  and  continue,  One,  according  to  the  tenour  and 
true  meaning  of  the  ensuing  Articles. 

1  For  the  texts  of  the  various  plans  and  scholarly  comment  upon  them,  see  Frederick  D. 
Stone,  Plans  for  the  Union  of  the  British  Colonies  of  North  America,  1643-1776.  in  Carson's 
lootli  Anniversary  of  the  Constitution  of  the  United  Stairs.  1889,  Vol.  ii,  pp.  439-503.  For 
a  summary  of  early  plans  and  suggestions  of  Colonial  Union  see  also  Chapter  IV  in  Richard 
Frothingham's  Rise  of  the  Republic  of  the  United  States.  1872,  pp.  109-120. 

2  Reprinted  from  the  Records  of  the  Colony  or  Jurisdiction  of  New  Haven,  C.  J.  Hoadly, 
ed.,  1858,  pp.  562-6. 

47i 


472  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

I.  Wherefore  it  is  fully  Agreed  and  Concluded  by  and  between  the  parties,  or 
Jurisdictions  above  named,  and  they  doe  joyntly  and  severally  by  these  presents 
agree  and  conclude,  That  they  all  be,  and  henceforth  be  called  by  the  name  of, 
The  United  Colonics  of  New-England. 

If.  The  said  United  Colonies  for  themselves,  and  their  posterities  doe  joyntly 
and  severally  hereby  enter  into  a  firm  and  perpetuall  league  of  friendship  and 
amity,  for  offence  and  defence,  mutuall  advice  and  succour,  upon  all  just  occa- 
sions, both  for  preserving  and  propagating  the  truth,  and  liberties  of  the  Gospel, 
and  for  their  own  mutuall  safety,  and  wellfare. 

III.  It  is  further  agreed,  That  the  Plantations  which  at  present  are,  or  here- 
after shall  be  settled  within  the  limits  of  the  Massachusets,  shall  be  forever  under 
the  Government  of  the  Massacluiscts.  And  shall  have  peculiar  Jurisdiction 
amongst  themselves,  as  an  intire  body;  and  that  Pliinontli,  Connecticut,  and  New- 
Haven,  shall  each  of  them,  in  all  respects,  have  the  like  peculiar  Jurisdiction,  and 
Government  within  their  limits.  And  in  reference  to  the  Plantations  which  al- 
ready are  setled,  or  shall  hereafter  be  erected  and  shall  settle  within  any  of  their 
limits  respectively,  provided  that  no  other  Jurisdiction  shall  hereafter  be  taken  in, 
as  a  distinct  head,  or  Member  of  this  Confederation,  nor  shall  any  other  either 
Plantation,  or  Jurisdiction  in  present  being,  and  not  already  in  combination,  or 
under  the  Jurisdiction  of  any  of  these  Confederates,  be  received  by  any  of  them, 
nor  shall  any  two  of  these  Confederates,  joyne  in  one  Jurisdiction,  without  consent 
of  the  rest,  which  consent  to  be  Interpreted,  as  in  the  sixt  ensuing  Article  is 
expressed. 

IV.  It  is  also  by  these  Confederates  agreed,  That  the  charge  of  all  just  Wars, 
whether  offensive,  or  defensive,  upon  what  part  or  Member  of  this  Confederation 
soever  they  fall,  shall  both  in  men,  provisions,  and  all  other  disbursements, 
be  born  by  all  the  parts  of  this  Confederation,  in  different  proportions,  ac- 
cording to  their  different  abilities,  in  manner  following,  namely,  That  the  Com- 
missioners for  each  Jurisdiction,  from  time  to  time,  as  there  shall  be  occasion, 
bring  a  true  account  and  number  of  all  the  Males  in  each  Plantation,  or  any  way 
belonging  to,  or  under  their  severall  Jurisdictions,  of  what  quality,  or  condition 
soever  they  be,  from  sixteen  years  old,  to  threescore,  being  inhabitants  there. 
And  that  according  to  the  different  numbers,  which  from  time  to  time  shall  be 
found  in  each  Jurisdiction,  upon  a  true,  and  just  account,  the  service  of  men,  and 
all  charges  of  the  war,  be  born  by  the  poll :  Each  Jurisdiction,  or  Plantation, 
being  left  to  their  own  just  course,  and  custome,  of  rating  themselves,  and  people, 
according  to  their  different  estates,  with  due  respect  to  their  qualities  and  exemp- 
tions among  themselves,  though  the  Confederation  take  no  notice  of  any  such 
priviledge.  And  that,  according  to  the  different  charge  of  each  Jurisdiction,  and 
Plantation,  the  whole  advantage  of  the  War  (if  it  please  God  so  to  blesse  their 
endeavours)  whether  it  be  in  Lands.  Goods,  or  persons,  shall  be  proportionably 
divided  among  the  said  Confederates. 

V.  It  is  further  agreed.  That  if  any  of  these  Jurisdictions,  or  any  Plantation 
under,  or  in  Combination  with  them,  be  invaded  by  any  enemy  whomsoever,  upon 
notice,  and  request  of  any  three   Magistrates  of  that  Jurisdiction   so  invaded. 


APPENDIX  473 

The  rest  of  the  Confederates,  without  any  further  meeting  or  expostulation,  shall 
forthwith  send  ayde  to  the  Confederate  in  danger,  but  in  different  proportion, 
namely  the  Massachusets  one  hundred  men  sufficiently  armed,  and  provided  for 
such  a  service,  and  journey.  And  each  of  the  rest  five  and  forty  men,  so  armed 
and  provided,  or  any  lesse  number,  if  lesse  be  required,  according  to  this  pro- 
portion. But  if  such  a  Confederate  may  be  supplyed  by  their  next  Confederate, 
not  exceeding  the  number  hereby  agreed,  they  may  crave  help  there,  and  seek  no 
further  for  the  present.  The  charge  to  be  born,  as  in  this  Article  is  expressed. 
And  at  their  return  to  be  victualled,  and  supplied  with  powder  and  shot  (if  there 
be  need)  for  their  journey  by  that  Jurisdiction  which  imployed,  or  sent  for  them. 
But  none  of  the  Jurisdictions  to  exceed  these  numbers,  till  by  a  meeting  of  the 
Commissioners  for  this  Confederation,  a  greater  ayde  appear  necessary.  And 
this  proportion  to  continue,  till  upon  knowledge  of  the  numbers  in  each  Jurisdic- 
tion, which  shall  be  brought  to  the  next  meeting,  some  other  proportion  be  ordered. 
But  in  any  such  case  of  sending  men  for  present  ayde,  whether  before  or  after 
such  order  or  alteration,  it  is  agreed,  That  at  the  meeting  of  the  Commissioners 
for  this  Confederation,  the  cause  of  such  war  or  invasion,  be  duly  considered, 
and  if  it  appear,  that  the  fault  lay  in  the  party  so  invaded,  that  then,  that  Juris- 
diction, or  Plantation,  make  just  satisfaction,  both  to  the  invaders,  whom  they 
have  injuried,  and  bear  all  the  charges  of  the  war  themselves,  without  requiring 
any  allowance  from  the  rest  of  the  Confederates  toward  the  same. 

And  further,  if  any  Jurisdiction  see  any  danger  of  an  invasion  approaching, 
and  there  be  time  for  a  meeting,  That  in  such  case,  three  Magistrates  of  that 
Jurisdiction  may  summon  a  meeting,  at  such  convenient  place,  as  themselves  shall 
think  meet,  to  consider,  and  provide  against  the  threatned  danger.  Provided, 
when  they  are  met,  they  may  remove  to  what  place  they  please,  onely  while  any 
of  these  four  Confederates,  have  but  three  Magistrates  in  their  Jurisdiction,  a 
request  or  summons,  from  any  two  of  them,  shall  be  accounted  of  equall  force, 
with  the  three  mentioned  in  both  the  clauses  of  this  Article,  till  there  be  an  in- 
crease of  Magistrates  there. 

VI.  It  is  also  agreed,  That  for  the  managing  and  concluding  of  all  affaires 
proper  to,  and  concerning  the  whole  Confederation,  two  Commissioners  shall  be 
chosen  by,  and  out  of  the  foure  Jurisdictions,  namely  two  for  the  Massachusets, 
two  for  Plimouth  two  for  Connecticut,  and  two  for  A'ezi'-hai'cn,  being  all  in 
Church-fellowship  with  us,  which  shall  bring  full  power  from  their  severall 
generall  Courts  respectively,  to  hear,  examine,  weigh,  and  determine  all  affaires 
of  war,  or  peace,  leagues,  aydes,  charges,  and  numbers  of  men  for  war,  division 
of  spoyles,  or  whatsoever  is  gotten  by  conquest,  receiving  of  more  confederates, 
or  Plantations  into  Combination  with  any  of  these  Confederates,  and  all  things 
of  like  nature,  which  are  the  proper  concomitants,  or  consequences  of  such  a 
Confederation,  for  amity,  offence,  and  defence,  not  intermedling  with  the  Gov- 
ernment of  any  of  the  Jurisdictions,  which  by  the  third  Article,  is  preserved 
intirely  to  themselves.  But  if  these  eight  Commissioners  when  they  meet,  shall  not 
all  agree,  yet  it  is  concluded,  That  any  six  of  the  eight  agreeing,  shall  have  power 


474  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

to  settle,  and  determine  the  businesse  in  question.  But  if  six  doe  not  agree,  that 
then  such  Propositions,  with  their  Reasons,  so  far  as  they  have  been  debated,  be 
sent,  and  referred  to  the  foure  Generall  Courts,  vis.  The  Massachusets,  Plymouth, 
Connectecut,  and  New-haven.  And  if  at  all  the  said  Generall  Courts,  the 
businesse  so  referred,  be  concluded,  then  to  be  prosecuted  by  the  Confederates, 
and  all  their  Members.  It  is  further  agreed,  That  these  eight  Commissioners 
shall  meet  once  every  year,  besides  extraordinary  meetings,  according  to  the  fifth 
Article  to  consider,  treat,  and  conclude  of  all  affaires  belonging  to  this  Confeder- 
ation, which  meeting  shall  ever  be  the  first  Thursday  in  September.  And  that 
the  next  meeting  after  the  date  of  these  presents,  which  shall  be  accounted  the 
second  meeting,  shall  be  at  Boston  in  the  Massachusets,  the  third  at  Hartford,  the 
fourth  at  New-haven,  the  fifth  at  Plimouth.  the  sixth  and  seventh  at  Boston;  and 
then  Hartford,  New-haven,  and  Plymouth,  and  so  in  course  successively.  If  in 
the  mean  time,  some  middle  place  be  not  found  out,  and  agreed  on,  which  may  be 
comodious  for  all  the  Jurisdictions. 

VII.  It  is  further  agreed,  That  at  each  meeting  of  these  eight  Commis- 
sioners, whether  ordinary  or  extraordinary ;  they  all,  or  any  six  of  them  agreeing 
as  before,  may  choose  their  President  out  of  themselves,  whose  Office  and  work 
shall  be,  to  take  care,  and  direct  for  Order,  and  a  comely  carrying  on  of  all  pro- 
ceedings in  the  present  meeting.  But  he  shall  be  invested  with  no  such  power  or 
respect,  as  by  which,  he  shall  hinder  the  propounding  or  progresse  of  any 
businesse,  or  any  way  cast  the  scales,  otherwise  then  in  the  precedent  Article  is 
agreed. 

VIII.  It  is  also  agreed,  That  the  Commissioners  for  this  Confederation  here- 
after at  their  meetings,  whether  ordinary  or  extraordinary,  as  they  may  have 
Commission  or  opportunity,  doe  endeavour  to  frame  and  establish  Agreements 
and  Orders  in  generall  cases  of  a  civil  nature,  wherein  all  the  Plantations  are 
interested,  for  preserving  peace  amongst  themselves,  and  preventing  (as  much  as 
may  be)  all  occasions  of  war,  or  differences  with  others,  as  about  the  free  and 
speedy  passage  of  Justice  in  each  Jurisdiction,  to  all  the  Confederates  equally,  as 
to  their  own,  receiving  those  that  remove  from  one  Plantation  to  another,  without 
due  Certificates,  how  all  the  Jurisdictions  may  carry  it  towards  the  Indians,  that 
they  neither  grow  insolent,  nor  be  injuried  without  due  satisfaction,  least  War 
break  in  upon  the  Confederates,  through  such  miscarriages.  It  is  also  agreed, 
That  if  any  Servant  run  away  from  his  Master,  into  any  other  of  these  Con- 
federated Jurisdictions,  That  in  such  case,  upon  the  Certificate  of  one  Magistrate 
in  the  Jurisdiction,  out  of  which  the  said  Servant  fled,  or  upon  other  due  proof, 
the  said  Servant  shall  be  delivered  either  to  his  Master,  or  any  other  that  pursues, 
and  brings  such  Certificate,  or  proof.  And  that  upon  the  escape  of  any  Prisoner 
whatsoever,  or  fugitive,  for  any  Criminall  Cause,  whether  breaking  Prison,  or 
getting  from  the  Officer  or  otherwise  escaping,  upon  the  Certificate  of  two  Magis- 
trates of  the  Jurisdiction  out  of  which  the  escape  is  made,  that  he  was  a  prisoner 
or  such  an  offender,  at  the  time  of  the  escape.  The  Magistrates,  or  some  of  them, 
of  that  Jurisdiction  where  for  the  present  the  said  prisoner  or  fugitive  abideth, 


APPENDIX  475 

shall  forthwith  grant  such  a  Warrant,  as  the  case  will  bear,  for  the  apprehending 
of  any  such  person,  and  the  delivery  of  him  into  the  hand  of  the  Officer,  or  other 
person  who  pursueth  him.  And  if  help  be  required  for  the  safe  returning  of  any 
such  offender,  it  shall  be  granted  unto  him  that  craves  the  same,  he  paying  the 
charges  thereof. 

IX.  And  for  that  the  justest  Wars  may  be  of  dangerous  consequence,  espe- 
cially to  the  smaller  Plantations  in  these  United  Colonies,  it  is  agreed,  That 
neither  the  Massachusets,  Plymouth,  Connecticut,  nor  New-Haven,  nor  any  of  the 
Members  of  any  of  them,  shall  at  any  time  hereafter  begin  undertake  or  engage 
themselves,  or  this  Confederation,  or  any  part  thereof  in  any  War  whatsoever 
(sudden  exigents  with  the  necessary  consequences  thereof  excepted,  which  are 
also  to  be  moderated,  as  much  as  the  case  will  permit)  without  the  consent  and 
agreement  of  the  forenamed  eight  Commissioners,  or  at  least  six  of  them,  as  in 
the  sixt  Article  is  provided.  And  that  no  charge  be  required  of  any  of  the  Con- 
federates in  case  of  a  defensive  War,  till  the  said  Commissioners  have  met,  and 
approved  the  Justice  of  the  War,  and  have  agreed  upon  the  sum  of  money  to  be 
levied ;  which  sum  is  then  to  be  paid  by  the  severall  Confederates,  in  proportion, 
according  to  the  fourth  Article. 

X.  That  in  extraordinary  occasions,  when  meetings  are  summoned  by  three 
Magistrates  of  any  Jurisdiction,  or  two  as  in  the  fifth  Article,  if  any  of  the 
Commissioners  come  not,  due  warning  being  given,  or  sent,  it  is  agreed,  That 
foure  of  the  Commissioners  shall  have  power  to  direct  a  War  which  cannot  be 
delayed,  and  to  send  for  due  proportions  of  men,  out  of  each  Jurisdiction,  as  well 
as  six  might  doe,  if  all  met,  but  not  lesse  then  six  shall  determine  the  justice  of 
the  War,  or  allow  the  demands,  or  Bills  of  charges,  or  cause  any  levies  to  be 
made  for  the  same. 

XI.  It  is  further  agreed,  That  if  any  of  the  Confederates  shall  hereafter  break 
any  of  these  present  Articles,  or  be  any  other  way  injurious  to  any  one  of  the 
other  Jurisdictions  such  breach  of  Agreement,  or  injury  shalbe  duly  considered, 
and  ordered  by  the  Commissioners  for  the  other  Jurisdictions,  that  both  peace, 
and  this  present  Confederation,  may  be  intirely  preserved  without  violation. 

Lastly,  this  perpetuall  Confederation,  and  the  severall  Articles  and  Agree- 
ments thereof,  being  read  and  seriously  considered,  both  by  the  Generall  Court 
for  the  Massachusets,  and  by  the  Commissioners  for  Plymouth,  Connecticut,  and 
New-Haven,  were  presently  and  fully  allowed  and  confirmed  by  three  of  the 
fore-named  Confederates,  namely  the  Massachusets,  Connecticut,  and  New- 
Haven;  in  testimony  whereof,  the  Generall  Court  of  the  Massachusets  by  their 
Secretary,  and  the  Commissioners  for  Connecticut  and  New-Haven  subscribed 
them  the  19  day  of  the  third  month,  commonly  called  May,  Anno  Domini,  1643. 

Only  the  Commissioners  from  Plymouth,  having  brought  no  Commission  to 
conclude,  desired  respite  to  advise  with  their  Generall  Court,  which  was  granted, 
and  at  the  second  meeting  of  the  Commissioners  for  the  Confederation,  held  at 
Boston  in  September  following,  the  Commissioners  for  the  Jurisdiction  of  Plym- 
outh, delivered  in  an  Order  of  their  Generall  Court,  dated  the  29  of  August,  1643, 


476  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

by  which  it  appeared  that  these  Articles  of  Confederation  were  read,  approved 
and  confirmed  by  the  said  Court,  and  all  their  Townships,  and  their  Commis- 
sioners authorized  to  ratine  them  by  their  subscriptions,  which  they  accordingly 
did,  the  7  day  of  September,  1643. 


II.     WILLIAM  PENN'S  PLAN  FOR  A  UNION  OF  THE  COLONIES, 

FEBRUARY  8,  1698.1 

[Plantation  General   Entries,  XXXIV  A.    102] 

A  Briefe  and  Plaine  Scheam  how  the  English  Colonies  in  the  North  parts  of 
America  Viz :  Boston  Connecticut  Road  Island  New  York  New  Jerseys, 
Pensilvania,  Maryland,  Virginia  and  Carolina  may  be  made  more  usefull  to 
the  Crowne,  and  one  anothers  peace  and  safty  with  an  universall  concurrence. 

1st.  That  the  severall  Colonies  before  mentioned  do  meet  once  a  year,  and 
oftener  if  need  be,  during  the  war,  and  at  least  once  in  two  years  in  times  of 
peace,  by  their  stated  and  appointed  Deputies,  to  debate  and  resolve  of  such 
measures  as  are  most  adviseable  for  their  better  understanding,  and  the  publick 
tranquility  and  safety 

2.  That  in  order  to  it  two  persons  well  qualified  for  sence  sobriety  and  sub- 
stance be  appointed  by  each  Province,  as  their  Representatives  or  Deputies,  which 
in  the  whole  make  the  Congress  to  consist  of  twenty  persons. 

3.  That  the  Kings  Commissioner  for  that  purpose  specially  appointed  shall 
have  the  Chaire  and  preside  in  the  said  Congresse. 

4.  That  they  shall  meet  as  near  as  conveniently  may  be  to  the  most  centrall 
Colony  for  ease  of  the  Deputies. 

5.  Since  that  may  in  all  probability,  be  New  York  both  because  it  is  near  the 
Center  of  the  Colonies  and  for  that  it  is  a  Frontier  and  in  the  Kings  nomination, 
the  Gov'  of  that  Colony  may  therefore  also  be  the  Kings  High  Commissioner 
during  the  Session  after  the  manner  of  Scotland. 

6.  That  their  business  shall  be  to  hear  and  adjust  all  matters  of  Complaint  or 
difference  between  Province  and  Province.  As  1st  where  persons  quit  their  own 
Province  and  goe  to  another,  that  they  may  avoid  their  just  debts  tho  they  be 
able  to  pay  them,  2d  where  offenders  fly  Justice,  or  Justice  cannot  well  be  had 
upon  such  offenders  in  the  Provinces  that  entertaine  them,  3dly  to  prevent  or  cure 
injuries  in  point  of  commerce,  4th,  to  consider  of  ways  and  means  to  support  the 
union  and  safety  of  these  Provinces  against  the  publick  enemies  In  which  Con- 
gresse the  Quotas  of  men  and  charges  will  be  much  easier,  and  more  equally  sett, 
then  it  is  possible  for  any  establishment  made  here  to  do ;  for  the  Provinces, 
knowing  their  own  condition  and  one  anothers,  can  debate  that  matter  with  more 
freedome  and  satisfaction  and  better  adjust  and  ballance  their  affairs  in  all 
respects    for   their   common   safty. 

1  Reprinted  from  Documents  Relative  to  the  Colonial  History  of  the  State  of  New  York, 
J.  R.  Brodhead,  1851  ed.,  Vol.  IV,  pp.  296-7. 


APPENDIX  477 

7ly  That  in  times  of  war  the  Kings  High  Commissioner  shall  be  generall  or 
Chief  Commander  of  the  severall  Quotas  upon  service  against  the  Common  enemy 
as  he  shall  be  advised,  for  the  good  and  benefit  of  the  whole. 


III.     BENJAMIN  FRANKLIN'S  PLAN  FOR  A  UNION  OF  THE  SEV- 
ERAL  COLONIES,   ADOPTED  AT  ALBANY,  JULY   10,    1754.1 

PLAN  OF  UNION 

Adopted  by  the  Convention  at  Albany;  With  the  Reasons  and  Motives 
for  Each  Article  of  the  Plan.2 

It  is  proposed  that  humble  application  be  made  for  an  act  of  Parliament  of 
Great  Britain,  by  virtue  of  which  one  general  government  may  be  formed  in 
. !  merica,  including  all  the  said  colonies,  within  and  under  which  government  each 
colony  may  retain  its  present  constitution,  except  in  the  particulars  wherein  a 
change  may  be  directed  by  the  said  act,  as  hereafter  follozvs. 

President-General  and  Grand  Council 

That  the  said  general  government  be  administered  by  a  President-General,  to 
be  appointed  and  supported  by  the  crown ;  and  a  Grand  Council,  to  be  chosen  by 
the  representatives  of  the  people  of  the  several  colonies  met  in  their  respective 
Assemblies. 

It  was  thought  that  it  would  be  best  the  president-general  should  be  supported 
as  well  as  appointed  by  the  crown,  that  so  all  disputes  betti'een  him  and  the  grand 
council  concerning  his  salary  might  be  prevented ;  as  such  disputes  have  been  fre- 
quently of  mischievous  consequence  in  particular  colonies,  especially  in  time  of 
public  danger.  The  quit-rents  of  crown  lands  in  America  might  in  a  short  time 
be  sufficient  for  this  purpose.  This  choice  of  members  for  the  grand  council  is 
placed  in  the  house  of  representatives  of  each  government,  in  order  to  give  the 
people  a  share  in  this  new  general  government,  as  the  crown  has  its  share  by  the 
appointment  of  the  president-general. 

1  Reprinted,  with  the  permission  of  The  Macmillan  Company  of  New  York,  from  Albert 
Henry  Smyth.  The  Writings  of  Benjamin  Franklin,  1907,  Vol.  iii,  pp.  207-227.  See  also 
Documents  Relative  to  the  Colonial  History  of  New   York,  Vol.  vi,  pp.  889-891. 

2  Dr.  Franklin  accompanied  the  text  of  the  Articles  with  comments  here  reproduced  in 
Italics.     The  several  Articles,  as  originally  adopted  are  printed  in  Roman  type. 

It  is  to  be  observed,  that  the  union  was  to  extend  to  the  colonies  of  New  Hampshire, 
Massachusetts,  Connecticut,  Rhode  Island,  New  York,  New  Jersey,  Pennsylvania,  Maryland, 
Virginia,  North  Carolina,  and  South  Carolina,  (being  all  the  British  Colonies  at  that  time 
in  North  America,  except  Georgia  and  Nova  Scotia,)  "  for  their  mutual  defence  and  secu- 
rity, and  for  extending  the  British  settlements  in  North  America."  Another  plan  was  pro- 
posed in  the  Convention,  which  included  only  New  Hampshire,  Massachusetts,  Connecticut, 
Rhode  Island,  New  York,  and  New  Jersey.  This  was  printed  in  the  volume  of  the  COLLEC- 
TIONS of  the  Massachusetts  Historical  Society  for  1800.  It  is  a  rough  draft  of  the  above 
Plan,  with  some  unimportant  variations.  It  would  seem,  by  the  Hints  communicated  to  Mr. 
Alexander,  that  Franklin  himself  did  not  at  first  contemplate  anything  more  that  a  union 
of  the   northern   colonies.      (Mr.   Smyth's   note.) 


ATS  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

But  it  being  proposed  by  the  gentlemen  of  the  council  of  New  York,  and  some 

other  counsellors  among  the  commissioners,  to  alter  the  plan  in  this  particular,  and 

>e  the  governors  and  council  of  the  several  provinces  a  share  in  the  choice  of 

the  grand  council,  or  at  least  a  power  of  approving  and  confirming,  or  of  dis- 

ailowing,  the  choice  made  by  the  house  of  representatives,  it  was  said, 

"  That  the  government  or  constitution,  proposed  to  be  formed  by  the  plan, 
consists  of  two  branches;  a  president-general  appointed  by  the  crown,  and  a 
council  chosen  by  the  people,  or  by  the  people's  representatives,  which  is  the  same 
thing. 

"  That  by  a  subsequent  article,  the  council  chosen  by  the  people  can  effect 
nothing  without  the  consent  of  the  president-general  appointed  by  the  crown;  the 
crown  possesses  therefore  full  one  half  of  the  power  of  this  constitution. 

"  That  in  the  British  constitution,  the  crown  is  supposed  to  possess  but  one 
third,  the  lords  having  their  share. 

"  That  this  constitution  seemed  rather  more  favourable  for  the  crown. 

"  That  it  is  essential  to  English  liberty,  that  the  subject  should  not  be  taxed  but 
bx  his  own  consent,  or  the  consent  of  his  elected  representatives. 

"  That  tares  to  be  laid  and  levied  by  this  proposed  constitution  will  be  pro- 
posed and  agreed  to  by  the  representatives  of  the  people,  if  the  plan  in  this  par- 
ticular be  preserved ; 

"  But  if  the  proposed  alteration  should  take  place,  it  seemed  as  if  matters  may 
be  so  managed,  as  that  the  crown  shall  finallx  have  the  appointment,  not  only  of 
the  president-general,  but  of  a  majority  of  the  grand  council;  for  seven  out  of 
eleven  governors  and  councils  are  appointed  by  the  crown; 

"And  so  the  people  in  all  the  colonics  would  in  effect  be  taxed  by  their 
governors. 

"  It  was  therefore  apprehended,  that  such  alterations  of  the  plan  would  give 
great  dissatisfaction,  and  that  the  colonics  could  not  be  easy  under  such  a  power 
in  governors,  and  such  an  infringement  of  what  they  take  to  be  English  liberty. 

"Besides,  the  giving  a  share  in  the  choice  of  the  grand  council  would  not  be 
equal  with  respect  to  all  the  colonics,  as  their  constitutions  differ.  In  some,  both 
governor  and  council  arc  appointed  by  the  crown.  In  others,  they  are  both  ap- 
pointed by  the  proprietors.  In  some,  the  people'  have  a  share  in  the  choice  of  the 
council;  in  others,  both  government  and  council  are  wholly  chosen  by  the  people. 
But  the  house  of  representatives  is  everywhere  chosen  by  the  people;  and,  there- 
fore, placing  the  right  of  choosing  the  grand  council  in  the  representativs  is  equal 
with  respect  to  all. 

"  That  the  grand  council  is  intended  to  represent  all  the  several  houses  of  rep- 
resentatives of  the  colonies,  as  a  house  of  representatives  doth  the  several  towns 
or  counties  of  a  colony.  Could  all  the  people  of  a  colony  be  consulted  and  unite 
in  public  measures,  a  house  of  representatives  would  be  needless,  and  could  all 
the  .  Issemblies  conveniently  consult  and  unite  in  general  measures,  the  grand 
council  would  be  unnecessary. 

"  That  a  house  of  commons  or  the  house  of  representatives,  and  the  grand 


APPENDIX  479 

council,  are  thus  alike  in  their  nature  and  intention.  And,  as  it  would  seem  im~ 
proper  that  the  King  or  House  of  Lords  should  have  a  power  of  disallowing  or 
appointing  members  of  the  House  of  Commons;  so  likezvise,  that  a  governor  and 
council  appointed  by  the  crown  should  have  a  power  of  disallozving  or  appointing 
members  of  the  grand  council,  who,  in  this  constitution,  are  to  be  the  representa- 
tives of  the  people. 

"  If  the  governors  and  councils  therefore  were  to  have  a  share  in  the  choice 
of  any  that  are  to  conduct  this  general  government,  it  should  seem  more  proper 
that  they  choose  the  president-general.  But,  this  being  an  office  of  great  trust 
and  importance  to  the  nation,  it  was  thought  better  to  be  filled  by  the  immediate 
appointment  of  the  crown. 

"  The  power  proposed  to  be  given  by  the  plan  to  the  grand  council  is  only  a 
concentration  of  the  powers  of  the  several  Assemblies  in  certain  points  for  the 
general  welfare;  as  the  power  of  the  president-general  is,  of  the  powers  of  the 
several  governors  in  the  same  points. 

"  And  as  the  choice  therefore  of  the  grand  council,  by  the  representatives  of 
the  people,  neither  gives  the  people  any  new  powers,  nor  diminishes  the  power  of 
the  crown,  it  was  thought  and  hoped  the  crozvn  would  not  disapprove  of  it." 

Upon  the  whole,  the  commissioners  zuere  of  opinion,  that  the  choice  ivas  most 
properly  placed  in  the  representatives  of  the  people. 

Election  of  Members 

That  within  months  after  the  passing  such  act,  the  house  of  representa- 

tives, that  happen  to  be  sitting  within  that  time,  or  that  shall  be  especially  for  that 
purpose  convened,  may  and  shall  choose  members  for  the  grand  council,  in  the 
follounng  proportion,  that  is  to  say, 

Massachusetts  Bay, , 7 

New  Hampshire,    2 

Connecticut 5 

Rhode  Island,   2 

New  York, 4 

New  Jersey,    3 

Pennsylvania,    6 

Maryland,    4 

Virginia, 7 

North  Carolina,    4 

South  Carolina, 4 

48 

It  was  thought,  that  if  the  least  colony  ivas  allowed  two,  and  the  others  in  pro- 
portion, the  number  would  be  very  great,  and  the  expense  heavy;  and  that  less 
than  two  would  not  be  convenient,  as,  a  single  person  being  by  any  accident  pre- 
vented appearing  at  the  meeting,  the  colony  he  ought  to  appear  for  would  not  be 


480  THE    UNITED   STATES  I    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

represented.  That  as  the  choice  was  not  immediately  popular,  they  would  be  gen- 
erally men  of  good  abilities  for  business,  and  men  of  reputation  for  integrity;  and 
that  forty-eight  such  men  might  be  a  number  sufficient.  But  though  it  was  thought 
reasonable  that  each  colony  should  have  a  share  in  the  representative  body  in  some 
degree  according  to  the  proportion  it  contributed  to  the  general  treasury,  yet  the 
proportion  of  wealth  or  power  of  the  colonies  is  not  to  be  judged  by  the  propor- 
tion here  fixed;  because  it  zvas  at  first  agreed,  that  the  greatest  colony  should  not 
have  more  than  seven  members,  nor  the  least  less  than  tzvo;  and  the  setting  these 
proportions  between  these  tzvo  extremes  was  not  nicely  attended  to,  as  it  would 
find  itself,  after  the  first  election,  from  the  sums  brought  into  the  treasury,  as  by 
a  subsequent  article. 

Place  of  First  Meeting 

who  shall  meet  for  the  first  time  at  the  city  of  Philadelphia  in  Pennsylvania, 


being  called  by  the  President-General  as  soon  as  conveniently  may  be  after  his 
appointment. 

Philadelphia  zvas  named  as  being  nearer  the  centre  of  the  colonies,  where  the 
commissioners  would  be  well  and  cheaply  accommodated.  The  high  roads, 
through  the  whole  extent,  are  for  the  most  part  very  good,  in  which  forty  or  fifty 
miles  a  day  may  very  well  be,  and  frequently  are,  travelled.  Great  part  of  the 
way  may  likewise  be  gone  by  water.  In  summer  time,  the  passages  are  frequently 
performed  in  a  week  from  Charleston  to  Philadelphia  and  New  York;  and  from 
Rhode  Island  to  New  York  through  the  Sound,  in  tzvo  or  three  days;  and  from 
Nezo  York  to  Philadelphia,  by  water  and  land,  in  tzvo  days,  by  stage,  boats  and 
wheel  carriages  that  set  out  every  other  day.  The  journey  from  Charleston  to 
Philadelphia  may  likczvise  be  facilitated  by  boats  running  up  Chesapeake  Bay 
three  hundred  miles.  But  if  the  zvhole  journey  be  performed  on  horseback,  the 
most  distant  members,  vie.  the  tzvo  from  New  Hampshire  and  from  South  Caro- 
lina may  probably  render  themselves  at  Philadelphia  in  fifteen  or  twenty  days;  the 
majority  may  be  there  in  much  less  time. 

New  Election 

That  there  shall  be  a  new  election  of  the  members  of  the  Grand  Council  every 
three  years ;  and,  on  the  death  or  resignation  of  any  member,  his  place  should  be 
supplied  by  a  new  choice  at  the  next  sitting  of  the  Assembly  of  the  colony  he 
represented. 

Some  colonies  have  annual  assemblies,  some  continue  during  a  governor's 
pleasure;  three  years  zvas  thought  a  reasonable  medium,  as  affording  a  new  mem- 
ber time  to  improve  himself  in  the  business,  and  to  act  after  such  improvement, 
and  yet  (jiving  opportunities,  frequently  enough,  to  change  him,  if  he  has  mis- 
behaved. 

Proportion  of  Members  After  the  First  Three  Years 

That  after  the  first  three  years,  when  the  proportion  of  money  arising  out  of 


APPENDIX  481 

each  colony  to  the  general  treasury  can  be  known,  the  number  of  members  to  be 
chosen  for  each  colony  shall  from  time  to  time,  in  all  ensuing  elections,  be  regu- 
lated by  that  proportion,  yet  so  as  that  the  number  to  be  chosen  by  any  one 
province  be  not  more  than  seven,  nor  less  than  two. 

By  a  subsequent  article  it  is  proposed,  that  the  general  council  shall  lay  and 
levy  such  general  duties,  as  to  them  may  appear  most  equal  and  least  burthen- 
some,  &c.  Suppose,  for  instance,  they  lay  a  small  duty  or  excise  on  some  com- 
modity imported  into  or  made  in  the  colonics,  and  pretty  generally  and  equally 
used  in  all  of  them,  as  runt  perhaps,  or  wine;  the  yearly  produce  of  this  duty  or 
excise,  if  fairly  collected,  would  be  in  some  colonies  greater,  in  others  less,  as  the 
colonies  are  greater  or  smaller.  When  the  collector's  accounts  are  brought  in, 
the  proportions  will  appear;  and  from  them  it  is  proposed  to  regulate  the  propor- 
tion of  representatives  to  be  chosen  at  the  next  general  election,  within  the  limits 
however  of  seven  and  tvi'o.  These  numbers  may  therefore  vary  in  the  course  of 
years,  as  the  colonies  may  in  the  growth  and  increase  of  people.  And  thus  the 
quota  of  tax  from  each  colony  would  naturally  vary  with  its  circumstances  thereby 
preventing  all  disputes  and  dissatisfaction  about  the  just  proportions  due  from 
each;  which  might  otherwise  produce  pernicious  consequences,  and  destroy  the 
harmony  and  good  agreement  that  ought  to  subsist  between  the  several  parts  of 
the  Union. 

Meetings  of  the  Grand  Council,  and  Call 

That  the  Grand  Council  shall  meet  once  in  every  year,  and  oftener  if  occasion 
require,  at  such  time  and  place  as  they  shall  adjourn  to  at  the  last  preceding 
meeting,  or  as  they  shall  be  called  to  meet  at  by  the  President-General  on  any 
emergency ;  he  having  first  obtained  in  writing  the  consent  of  seven  of  the  mem- 
bers to  such  call,  and  sent  due  and  timely  notice  to  the  whole. 

It  was  thought,  in  establishing  and  governing  new  colonics  or  settlements, 
regulating  Indian  trade,  Indian  treaties,  &c,  there  would  be  every  year  sufficient 
business  arise  to  require  at  least  one  meeting,  and  at  such  meeting  many  things 
might  be  suggested  for  the  benefit  of  all  the  colonics.  This  annual  meeting  may 
either  be  at  a  time  or  place  certain,  to  be  fixed  bv  the  president-general  and  grand 
council  at  their  first  meeting ;  or  left  at  liberty,  to  be  at  such  time  and  place  as 
they  shall  adjourn  to,  or  be  called  to  meet  at  by  the  president-general. 

In  time  of  ivar  it  seems  convenient,  that  the  meeting  should  be  in  that  colony, 
which  is  nearest  the  seat  of  action. 

The  pozver  of  calling  them  on  any  emergency  seemed  necessary  to  be  vested 
in  the  president-general ;  but,  that  such  pozver  might  not  be  wantonly  used  to 
harass  the  members,  and  oblige  them  to  make  frequent  long  journeys  to  little  pur- 
pose, the  consent  of  seven  at  least  to  such  call  was  supposed  a  convenient  guard. 

Continuance 

That  the  Grand  Council  have  power  to  choose  their  speaker ;  and  shall  neither 
be  dissolved,  prorogued,  nor  continued  sitting  longer  than  six  weeks  at  one  time, 
without  their  own  consent  or  the  special  command  of  the  crown. 


482  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

The  speaker  should  be  presented  for  approbation;  it  being  convenient,  to  pre- 
vent misunderstandings  and  disgusts,  that  the  mouth  of  the  councils  should  be  a 
person  agreeable,  if  possible,  both  to  the  council  and  president-general. 

Governors  have  sometimes  wantonly  exercised  the  power  of  proroguing  or 
continuing  the  sessions  of  assemblies,  merely  to  harass  the  members  and  compel 
a  compliance ;  and  sometimes  dissolve  them  on  slight  disgusts.  This  it  was  feared 
might  be  done  by  the  president-general,  if  not  provided  against;  and  the  incon- 
venience and  hardship  would  be  greater  in  the  general  government  than  in  par- 
ticular colonies,  in  proportion  to  the  distance  the  members  must  be  from  home 
during  sittings,  and  the  long  journeys  some  of  them  must  necessarily  take. 

Members'  Allowance 

That  the  members  of  the  Grand  Council  shall  be  allowed  for  their  service  ten 
shillings  sterling  per  diem,  during  their  session  and  journey  to  and  from  the  place 
of  meeting;  twenty  miles  to  be  reckoned  a  day's  journey. 

77  was  thought  proper  to  allow  some  wages,  lest  the  expense  might  deter  some 
suitable  persons  from  the  service;  and  not  to  allow  too  great  wages,  lest  unsuit- 
able persons  should  be  tempted  to  cabal  for  the  employment,  for  the  sake  of  gain. 
Twenty  miles  were  set  down  as  a  day's  journey,  to  allow  for  accidental  hindrances 
on  the  road,  and  the  greater  expenses  of  travelling  than  residing  at  the  place  of 
meeting. 

Assent  of  President-General  and  His  Duty 

That  the  assent  of  the  President-General  be  requisite  to  all  acts  of  the  Grand 
Council,  and  that  it  be  his  office  and  duty  to  cause  them  to  be  carried  into  exe- 
cution. 

The  assent  of  the  president-general  to  all  acts  of  the  grand  council  was  made 
necessary,  in  order  to  give  the  crown  its  due  share  of  influence  in  this  govern- 
ment, and  connect  it  with  that  of  Great  Britain.  The  president-general,  besides 
one  half  of  the  legislative  power,  hath  in  his  hands  the  whole  executive  power. 

Power   of    President-General   and    Grand   Council; 
Treaties  of  Peace  and  War 

That  the  President-General,  with  the  advice  of  the  Grand  Council,  hold  or 
direct  all  Indian  treaties,  in  wbich  the  general  interest  of  the  colonies  may  be 
concerned ;  and  make  peace  or  declare  war  with  Indian  nations. 

The  power  of  making  peace  or  war  with  Indian  nations  is  at  present  supposed 
to  be  in  every  colony,  and  is  expressly  granted  to  some  by  charter,  so  that  no  new 
power  is  hereby  intended  to  be  granted  to  the  colonics.  But  as,  in  consequence  of 
this  power,  one  colony  might  make  peace  with  a  nation  that  another  was  justly 
engaged  in  war  with ;  or  make  war  on  slight  occasions  without  the  concurrence  or 
approbation  of  neighbouring  colonics,  greatly  endangered  by  it;  or  make  par- 
ticular treaties  of  neutrality  in  case  of  a  general  tcw,  to  their  own  private  advan- 
tage in  trade,  by  supplying  the  common  enemy;  of  all  which  there  have  been 


APPENDIX  483 

instances;  it  zms  thought  better,  to  have  all  treaties  of  a  general  nature  under 
a  general  direction,  that  so  the  good  of  the  ivhole  may  be  consulted  and  provided 
for. 

Indian  Trade 

That  they  make  such  laws  as  they  judge  necessary  for  regulating  all  Indian 
trade. 

Many  quarrels  and  wars  have  arisen  between  the  colonies  and  Indian  nations, 
through  the  bad  conduct  of  traders  who  cheat  the  Indians  after  making  them 
drunk,  &c,  to  the  great  expense  of  the  colonies,  both  in  blood  and  treasure.  Par- 
ticular colonies  are  so  interested  in  the  trade,  as  not  to  be  willing  to  admit  such  d 
regulation  as  might  be  best  for  the  whole;  and  therefore  it  was  thought  best  under 
a  general  direction. 

Indian  Purchases 

That  they  make  all  purchases,  from  Indians  for  the  crown,  of  lands  not  now 
within  the  bounds  of  particular  colonies,  or  that  shall  not  be  within  their  bounds 
when  some  of  them  are  reduced  to  more  convenient  dimensions. 

Purchases  from  the  Indians,  made  by  private  persons,  have  been  attended  with 
many  inconveniences.  They  have  frequently  interfered,  and  occasioned  uncer- 
tainty of  titles,  many  disputes  and  expensive  law  suits,  and  hindered  the  settle- 
ment of  the  land  so  disputed.  Then  the  Indians  have  been  cheated  by  such  pri- 
vate purchases,  and  discontent  and  wars  have  been  the  consequence.  These  woidd 
be  prevented  by  public  fair  purchases. 

Several  of  the  colony  charters  in  America  extend  their  bounds  to  the  South 
Sea,  which  may  be  perhaps  three  or  four  thousand  miles  in  length  to  one  or  two 
hundred  miles  in  breadth.  It  is  supposed  they  must  in  time  be  reduced  to  dimen- 
sions more  convenient  for  the  common  purposes  of  government. 

Very  little  of  the  land  in  those  grants  is  yet  purchased  of  the  Indians. 

It  is  much  cheaper  to  purchase  of  them,  than  to  take  and  maintain  the  pos- 
session by  force;  for  they  are  generally  very  reasonable  in  their  demands  for  land; 
and  the  expense  of  guarding  a  large  frontier  against  their  incursions  is  vastly 
great;  because  all  must  be  guarded,  and  always  guarded,  as  we  know  not  where 
or  when  to  expect  them. 

New  Settlements 

That  they  make  new  settlements  on  such  purchases,  by  granting  lands  in  the 
King's  name,  reserving  a  quit-rent  to  the  crown  for  the  use  of  the  general 
treasury. 

It  is  supposed  better  that  there  should  be  one  purchaser  than  many;  and  that 
the  crozvn  should  be  that  purchaser,  or  the  Union  in  the  name  of  the  crown.  By 
this  means  the  bargains  may  be  more  easily  made,  the  price  not  enhanced  by 
numerous  bidders,  future  disputes  about  private  Indian  purchases,  and  monopo- 
lies of  vast  tracts  to  particular  persons  (which  are  prejudicial  to  the  settlement 
and  peopling  of  the  country),  prevented;  and,  the  land  being  again  granted  in 


484  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

small  tracts  to  the  settlers,  the  quit-rents  reserved  may  in  time  become  a  fund  for 
support  of  government,  for  defence  of  the  country,  case  of  taxes,  &c. 

Strong  forts  on  the  Lakes,  the  Ohio,  &c.,  may,  at  the  same  time  they  secure 
our  present  frontiers,  serve  to  defend  new  colonics  settled  under  their  protection; 
and  sucli  colonics  would  also  mutually  defend  and  support  such  forts,  and  better 
secure  the  friendship  of  the  far  Indians. 

A  particular  colony  has  scarce  strength  enough  to  extend  itself  by  new  settle- 
ments, at  so  great  a  distance  from  the  old;  but  the  joint  force  of  the  Union  might 
suddenly  establish  a  new  colony  or  two  in  those  parts,  or  extend  an  old  colony 
to  particular  passes,  greatly  to  the  security  of  our  present  frontiers,  increase  of 
trade  and  people,  breaking  off  the  French  communication  between  Canada  and 
Louisiana,  and  speedy  settlement  of  the  intermediate  lands. 

The  power  of  settling  new  colonies  is  therefore  thought  a  valuable  part  of  the 
plan,  and  what  cannot  so  zvell  be  executed  by  two  unions  as  by  one. 

Laws  to  Govern  Them 

That  they  make  laws  for  regulating  and  governing  such  new  settlements,  till 
the  crown  shall  think  fit  to  form  them  into  particular  governments. 

The  making  of  laws  suitable  for  the  new  colonics,  it  was  thought,  would  be 
properly  vested  in  the  president-general  and  grand  council;  under  whose  protec- 
tion they  must  at  first  necessarily  be.  and  who  zvould  be  well  acquainted  with 
their  circumstances,  as  having  settled  them.  When  they  are  become  sufficiently 
populous,  they  may  by  the  crown  be  formed  into  complete  and  distinct  govern- 
ments. 

The  appointment  of  a  sub-president  by  the  crown,  to  take  place  in  case  of  the 
death  or  absence  of  the  president-general,  zvould  perhaps  be  an  improvement  of 
the  plan;  and  if  all  the  governors  of  particular  provinces  zvere  to  be  formed  into 
a  standing  council  of  state,  for  the  advance  and  assistance  of  the  president-general, 
it  might  be  another  considerable  improvement. 

Raise  Soldiers  and  Equip  Vessels,  &c. 

That  they  raise  and  pay  soldiers  and  build  forts  for  the  defence  of  any  of  the 
colonies,  and  equip  vessels  of  force  to  guard  the  coasts  and  protect  the  trade  on 
the  ocean,  lakes,  or  great  rivers;  but  they  shall  not  impress  men  in  any  colony, 
without  the  consent  of  the  legislature. 

It  was  thought,  that  quotas  of  men,  to  be  raised  and  paid  by  the  several  colo- 
nics, and  joined  for  any  public  service,  could  not  always  be  got  together  with  the 
necessary  expedition,  for  instance,  suppose  one  thousand  men  should  be  wanted 
in  Mew  Hampshire  on  any  emergency.  To  fetch  them  by  fifties  and  hundreds  out 
of  every  colony,  as  far  as  South  Carolina,  would  be  inconvenient,  the  transpor- 
tation chargeable,  and  the  occasion  perhaps  passed  before  they  could  be  assem- 
bled; and  therefore  that  it  would  be  best  to  raise  them  (by  offering  bounty-money 
and  pay)  near  the  place  where  they  would  be  wanted,  to  be  discharged  again  zvhen 
the  service  should  be  over. 

Particular  colonies  are  at  present  backzvard  to  build  forts  at  their  ozvn  ex- 


APPENDIX  485 

pense,  which  they  say  will  be  equally  useful  to  their  neighbouring  colonies;  who 
refuse  to  join,  on  a  presumption  that  such  forts  will  be  built  and  kept  up,  though 
they  contribute  nothing.  This  unjust  conduct  weakens  the  whole;  but  the  forts 
being  for  the  good  of  the  whole,  it  was  thought  best  they  should  be  built  and 
maintained  by  the  whole,  out  of  the  common  treasury. 

In  the  time  of  war,  small  vessels'  of  force  are  sometimes  necessary  in  the  colo- 
nies to  scour  the  coasts  of  small  privateers.  These  being  provided  by  the  Union 
will  be  an  advantage  in  turn  to  the  colonies  which  are  situated  on  the  sea,  and 
whose  frontiers  on  the  landside,  being  covered  by  other  colonies,  reap  but  little 
immediate  benefit  from  the  advanced  forts. 

Power  to  Make  Laws,  Lay  Duties,  &c. 

That  for  these  purposes  they  have  power  to  make  laws,  and  lay  and  levy  such 
general  duties,  imposts,  or  taxes,  as  to  them  shall  appear  most  equal  and  just 
(considering  the  ability  and  other  circumstances  of  the  inhabitants  in  the  several 
colonies),  and  such  as  may  be  collected  with  the  least  inconvenience  to  the  people; 
rather  discouraging  luxury,  than  loading  industry  with  unnecessary  burthens. 

The  laws  which  the  president-general  and  grand  council  arc  empozvered  to 
make  are  such  only  as  shall  be  necessary  for  the  government  of  the  settlements ; 
the  raising,  regulating,  and  paying  soldiers  for  the  general  service;  the  regulating 
of  Indian  trade;  and  laying  and  collecting  the  general  duties  and  taxes.  They 
should  also  have  a  pozver  to  restrain  the  exportation  of  provisions  to  the  enemy 
from  any  of  the  colonics,  on  particular  occasions,  in  time  of  ivar.  But  it  is  not 
intended  that  they  may  interfere  with  the  constitution  and  government  of  the  par- 
ticular colonies;  who  are  to  be  left  to  their  own  laws,  and  to  lay,  levy,  and  apply 
their  ozvn  taxes  as  before. 

General  Treasurer  and  Particular  Treasurer 

That  they  may  appoint  a  General  Treasurer  and  Particular  Treasurer  in  each 
government,  when  necessary ;  and  from  time  to  time  may  order  the  sums  in  the 
treasuries  of  each  government  into  the  general  treasury ;  or  draw  on  them  for 
special  payments,  as  they  find  most  convenient. 

The  treasurers  here  meant  are  only  for  the  general  funds,  and  not  for  the  par- 
ticular funds  of  each  colony,  which  remain  in  the  hands  of  their  own  treasurers 
at  their  own  disposal. 

Money,  How  to  Issue 

Yet  no  money  to  issue  but  by  joint  orders  of  the  President-General  and  Grand 
Council ;  except  where  sums  have  been  appropriated  to  particular  purposes,  and 
the  President-General  is  previously  empowered  by  an  act  to  draw  such  sums. 

To  prevent  misapplication  of  the  money,  or  even  application  that  might  be  dis- 
satisfactory to  the  crozen  or  the  people,  it  was  thought  necessary,  to  join  the 
president-general  and  grand  council  in  all  issues  of  money. 


4s6        the  united  states  i  a  study  in  international  organization 

Accounts 

That  the  general  accounts  shall  be  yearly  settled  and  reported  to  the  several 
Assemblies. 

B\<  communicating  the  accounts  yearly  to  each  Assembly,  they  will  be  satisfied 
of  the  prudent  and  honest  conduct  of  their  representatives  in  the  grand  council. 

Quorum 

That  a  quorum  of  the  Grand  Council,  empowered  to  act  with  the  President- 
General,  do  consist  of  twenty-five  members;  among  whom  there  shall  be  one  or 
more  from  a  majority  of  the  colonies. 

The  quorum  seems  large,  but  it  was  thought  it  would  not  be  satisfactory  to  the 
colonies  in  general,  to  have  matters  of  importance  to  the  whole  transacted  by  a 
smaller  number,  or  even  by  this  number  of  twenty-five,  unless  there  zvere  among 
them  one  at  least  from  a  majority  of  the  colonies;  because  otherwise,  the  whole 
quorum  being  made  up  of  members  from  three  or  four  colonies  at  one  end  of  the 
union,  something  might  be  done  that  would  not  be  equal  with  respect  to  the  rest, 
and  thence  dissatisfaction  and  discords  might  rise  to  the  prejudice  of  the  whole. 

Laws  to  be  Transmitted 

That  the  laws  made  by  them  for  the  purposes  aforesaid  shall  not  be  repugnant, 
but,  as  near  as  may  be,  agreeable  to  the  laws  of  England,  and  shall  be  transmitted 
to  the  King  in  Council  for  approbation,  as  soon  as  may  be  after  their  passing;  and 
if  not  disapproved  within  three  years  after  presentation,  to  remain  in  force. 

This  was  thought  necessary  for  the  satisfaction  of  the  crown,  to  preserve  the 
connexion  of  the  parts  of  the  British  empire  with  the  whole,  of  the  members  with 
the  head,  and  to  induce  greater  care  and  circumspection  in  making  of  the  laws,, 
that  they  be  good  in  themselves  and  for  the  general  benefit. 

Death  of  the  President-General 

That,  in  case  of  the  death  of  the  President-General,  the  Speaker  of  the  Grand 
Council  for  the  time  being  shall  succeed,  and  be  vested  with  the  same  powers  and 
authorities,  to  continue  till  the  King's  pleasure  be  known. 

77  might  be  better,  perhaps,  as  was  said  before,  if  the  crown  appointed  a  vice- 
president,  to  take  place  on  the  death  or  absence  of  the  president-general;  for  so 
we  should  be  more  sure  of  a  suitable  person  at  the  head  of  the  colonies.  On  the 
death  or  absence  of  both,  the  speaker  to  take  place  (or  rather  the  eldest  King's 
governor)  till  his  Majesty's  pleasure  be  known. 

Officers,  How  Appointed 

That  all  military  commission  officers,  whether  for  land  or  sea  service,  to  act 
under  this  general  constitution,  shall  be  nominated  by  the  President-General ;  but 
the  approbation  of  the  Grand  Council  is  to  be  obtained,  before  they  receive  their 


APPENDIX 


487 


commissions.  And  all  civil  officers  are  to  be  nominated  by  the  Grand  Council,  and 
to  receive  the  President-General's  approbation  before  they  officiate. 

It  zvas  thought  it  might  be  very  prejudicial  to  the  scrz'ice,  to  have  officers  ap- 
pointed unknown  to  the  people,  or  unacceptable,  the  generality  of  Americans  serv- 
ing willingly  under  offcers  they  know;  and  not  caring  to  engage  in  the  service 
under  strangers,  or  such  as  are  often  appointed  by  governors  through  favour  or 
interest.  The  service  here  meant,  is  not  the  stated,  settled  service  in  standing 
troops;  but  any  sudden  and  short  service,  either  for  defence  of  our  colonies,  or 
invading  the  enemy's  country;  (such  as  the  expedition  to  Cape  Breton  in  the 
last  zvar;  in  which  many  substantial  farmers  and  tradesmen  engaged  as  common 
soldiers,  under  officers  of  their  own  country,  for  whom  they  had  an  esteem  and 
affection;  who  would  not  have  engaged  in  a  standing  army,  or  under  officers  from 
England.)  It  was  therefore  thought  best  to  give  the  council  the  power  of  ap- 
proving the  officers,  which  the  people  will  look  upon  as  a  great  security  of  their 
being  good  men.  And  without  some  such  proznsion  as  this,  it  zcas  thought  the 
expense  of  engaging  men  in  the  service  on  any  emergency  would  be  much  greater, 
and  the  number  who  could  be  induced  to  engage  much  less;  and  that  therefore  it 
would  be  most  for  the  king's  service  and  general  benefit  of  the  nation,  that  the 
prerogative  should  relax  a  little  in  this  particular  throughout  all  the  colonies  in 
America;  as  it  had  already  done  much  more  in  the  charters  of  some  particular 
colonics,  vie.  Connecticut  and  Rhode  Island. 

The  civil  officers  will  be  chiefly  treasurers  and  collectors  of  taxes;  and  the 
suitable  persons  are  most  likely  to  be  known  by  the  council. 

Vacancies,  .How  Supplied 

But,  in  case  of  vacancy  by  death  or  removal  of  any  officer  civil  or  military 
under  this  constitution,  the  Governor  of  the  province  in  which  such  vacancy 
happens  may  appoint,  till  the  pleasure  of  the  President-General  and  Grand  Coun- 
cil can  be  known. 

The  vacancies  were  thought  best  supplied  by  the  governors  in  each  province, 
till  a  new  appointment  can  be  regularly  made;  otherzvise  the  service  might  suffer 
before  the  meeting  of  the  president-general  and  grand  council. 

Each  Colony  May  Defend  Itself  on  Emergency,  &c. 

That  the  particular  military  as  well  as  civil  establishments  in  each  colony 
remain  in  their  present  state,  the  general  constitution  notwithstanding;  and  that 
on  sudden  emergencies  any  colony  may  defend  itself,  and  lay  the  accounts  of 
expense  thence  arising  before  the  President-General  and  General  Council,  who 
may  allow  and  order  payment  of  the  same,  as  far  as  they  judge  such  accounts  just 
and  reasonable. 

Otherwise  the  union  of  the  whole  would  weaken  the  parts,  contrary  to  the 
design  of  the  union.  The  accounts  are  to  be  judged  of  by  the  president-general 
and  grand  council,  and  allowed  if  found  reasonable.     This  was  thought  necessary 


488  THE   UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

to  encourage  colonies  to  defend  themselves,  as  the  expense  would  be  light  when 
borne  by  the  whole;  and  also  to  check  imprudent  and  lavish  expense  in  such 
defences.1 

IV.     BENJAMIN  FRANKLIN'S  SKETCH  OF  ARTICLES  OF 
CONFEDERATION  2 

Read  before  Congress  July  21,  1775. 

Articles    of    Confederation    and    Perpetual    Union,    Entred    in    by   the 

Delegates  of  the  Several  Colonies  of  New  Hampshire,  Etc., 

in  General  Congress3 

Met  at  Philadelphia  May  10.  1775. 

ART.  I. 
The  Name  of  this  Confederacy  shall  henceforth  be  The  United  Colonies  of 
North  America. 

1  In  Carey's  American  Museum,  1789,  February  (pp.  190-194),  March  (pp.  285-288), 
April  (pp.  365-368),  there  is  an  elaborate  article,  "Albany  Plan  of  Union,"  at  the  conclusion 
of  which  appears  the  following:  — 

"  Remark  February  9,  1789. 

"On  Reflection  it  now  seems  probable,  that  if  the  foregoing  Plan  or  something  like  it  had 
been  adopted  and  carried  into  Execution,  the  subsequent  Separation  of  the  Colonies  from  the 
Mother  Country  might  not  so  soon  have  happened,  nor  the  Mischiefs  suffered  on  both  sides 
have  occurred  perhaps  during  another  Century.  For  the  Colonies,  if  so  united,  would  have 
really  been,  as  they  then  thought  themselves,  sufficient  to  their  own  Defence,  and  being 
trusted  with  it,  as  by  the  Plan,  an  Army  from  Britain,  for  that  purpose  would  have  been 
unnecessary ;  The  Pretences  for  framing  the  Stamp  Act  would  then  not  have  existed,  nor  the 
other  Projects  for  drawing  a  Revenue  from  America  to  Britain  by  Act  of  Parliament,  which 
were  the  Causes  of  the  Breach  &  attended  with  such  terrible  Expense  of  Blood  and  Treasure; 
so  that  the  different  Parts  of  the  Empire  might  still  have  remained  in  Peace  and  Union.  But 
the  Fate  of  this  Plan  was  singular.  For  then  after  many  Days  thorough  Discussion  of  all 
its  Parts  in  Congress  it  was  unanimously  agreed  to,  and  Copies  ordered  to  be  sent  to  the 
Assembly  of  each  Province  for  Concurrence,  and  one  to  the  Ministry  in  England  for  the 
Approbation  of  the  CrowVi.  The  Crown  disapproved  it,  as  having  placed  too  much  Weight 
in  the  Democratic  Part  of  the  Constitution ;  and  every  Assembly  as  having  allowed  too  much 
to  Prerogative.     So  it  was  totally  rejected." 

The  above,  as  printed  in  The  Museum,  omits  the  word  "  Remark,"  but  bears  date  at  the 
bottom,  Philadelphia,  April  9,  1789.  It  was  written  by  Dr.  Franklin  and  accompanied  the 
following  letter :  — 

"  Sir 

"  I  thank  you  for  the  Opportunity  you  propose  to  give  me  of  making  Alterations  in  those 
old  Pieces  of  mine  which  you  intend  to  republish  in  your  Museum.  I  have  no  Inclination  to 
make  any  Changes  in  them ;  but  should  like  to  see  the  Proof  Sheet,  supposing  your  Copies 
may  possibly  be  incorrect. —  And  if  you  have  no  Objection,  you  may  follow  the  Albany  Plan 
with  the  enclosed  Remark  but  not  as  from  me. 

"  I  am,  Sir 

"  Your  humble  Servant, 

(Signed)     "  B.  Franklin." 

Addressed  on  the  back:  — 

"  Mr.  Mathew  Carey 

"  Printer  of  the  Museum." 

The  originals  of  the  above  papers,  in  the  handwriting  of  Dr.  Franklin,  are  in  my  possession. 

Henry  Carey  Baird, 

Philadelphia.  — Ed. 

-  Reprinted  from  Albert  Henry  Smyth,  The  Writings  of  Benjamin  Franklin  (New  York, 
The  Macmillan  Co.),  Vol.  vi,  pp.  420-426. 

3  A  contemporary  copy  exists  among  the   papers  of  the  Continental  Congress    (vol.   47, 


APPENDIX  489 

ART.  II. 

The  said  United  Colonies  hereby  severally  enter  into  a  firm  League  of  Friend- 
ship with  each  other,  binding  [on]  themselves  and  their  Posterity,  for  [their 
common]  Defence  against  their  Enemies,  for  the  Security  of  their  Liberties  and 
Properties,  the  Safety  of  their  Persons  and  Families,  and  their  mutual  and  gen- 
eral Welfare. 

ART.  III. 

That  each  Colony  shall  enjoy  and  retain  as  much  as  it  may  think  fit  of  its 
own  present  Laws,  Customs,  Rights,  Privileges,  and  peculiar  jurisdictions  within 
its  own  Limits ;  and  may  amend  its  own  Constitution,  as  shall  seem  best  to  its 
own  Assembly  or  Convention. 

ART.  IV. 

That  for  the  more  convenient  Management  of  general  Interests,  Delegates 
shall  be  annually  elected  in  each  Colony,  to  meet  in  General  Congress  at  such 
Time  and  Place  as  shall  be  agreed  on  in  the  next  preceding  Congress.  Only, 
where  particular  Circumstances  do  not  make  a  Duration  necessary,  it  is  understood 
to  be  a  Rule,  that  each  succeeding  Congress  be  held  in  a  different  Colony,  till  the 
whole  Number  be  gone  through ;  and  so  in  perpetual  Rotation ;  and  that  accord- 
ingly the  next  [Congress]  after  the  present  shall  be  held  at  Annapolis,  in  Maryland. 

ART.V. 

That  the  Power  and  Duty  of  the  Congress  shall  extend  to  the  Determining  on 
War  and  Peace;  the  entring  into  Alliances,  [sending  and  receiving  ambassadors] 
(the  reconciliation  with  Great  Britain)  ;  the  settling  all  Disputes  and  Differences 
between  Colony  and  Colony,  [about  Limits  or  any  other  cause,]  if  such  should 
arise ;  and  the  Planting  of  new  Colonies ;  when  proper.  The  Congress  shall  also 
make  such  general  [ordinances]  as,  tho'  necessary  to  the  General  Welfare,  par- 
ticular Assemblies  cannot  be  competent  to,  viz.  [those  that  may  relate  to  our 
general]  Commerce,  or  general  Currency;  the  establishment  of  Posts;  [and]  the 
Regulation  of  [our  common]  Forces.  The  Congress  shall  also  have  the  appoint- 
ment of  all  General  Officers,  civil  and  military,  appertaining  to  the  general  Con- 
federacy, such  as  General  Treasurer,  Secretary,  &c. 

ART.  VI. 

All  Charges  of  Wars,  and  all  other  general  Expences  [to  be]  incurr'd  for 
the  common  Welfare,  shall  be  defray'd  out  of  a  common  Treasury,  which  is  to 
be  supply'd  by  each  Colony  in  proportion  to  its  Number  of  Male  Polls  between 
16  and  60  Years  of  Age;  the  Taxes  for  paying  that  Proportion  [are]  to  be  laid 
and  levied  by  [the]  Laws  of  each  Colony. 

folios  1-7),  L.  C.     It  is  endorsed  by  Franklin:     "  Sketch  of  Articles  of  Confederation,"  and, 
in  a  different  hand,  "  Read  before  Congress  July  21,  1775." — Smyth's  note. 


490        the  united  states:  a  study  in  international  organization 

ART.  VII. 

The  Number  of  Delegates  to  be  elected  and  sent  to  the  Congress  by  each 
Colony  shall  be  regulated,  from  time  to  time,  by  the  Number  of  [such]  Polls 
return'd ;  so  as  that  one  Delegate  be  allowed  for  every  5000  Polls.  And  the 
Delegates  are  to  bring  with  them  to  every  Congress  an  authenticated  return  of 

the  number  of  Polls  in  their  respective  Provinces,   [which  is]   to  be  „ 

annually 

taken  for  the  Purposes  above  mentioned. 

ART.  VIII. 

At  every  Meeting  of  the  Congress,  one  half  of  the  Members  return'd,  exclu- 
sive of  Proxies,  be  necessary  to  make  a  Quorum ;  and  each  Delegate  at  the  Con- 
gress shall  have  a  Vote  in  all  Cases,  and,  if  necessarily  absent,  shall  be  allow'd  to 
appoint  [any  other  Delegate  from  the  same  Colony  to  be  his]  Proxy,  who  may 
vote  for  him. 

ART.  IX. 

An  executive  Council  shall  be  appointed  by  the  Congress  [out  of  their  own 
Body,]  consisting  of  12  Persons;  of  whom,  in  the  first  appointment,  [one  third, 
viz.]  (four,)  shall  be  for  one  Year,  (four)  for  two  Years,  and  (four)  for  three 
Years ;  and  as  the  said  terms  expire,  the  Vacancies  shall  be  filled  by  appointments 
for  three  Years;  whereby  one  Third  of  the  Members  will  be  changed  annually. 
And  each  Person  who  has  served  the  said  Term  [of  three  Years]  as  Counsellor, 
shall  have  a  Respite  of  three  Years,  before  he  can  be  elected  again.  This  Council, 
[of  whom  two  thirds  shall  be  a  Quorum]  in  the  Recess  of  Congress,  is  to  execute 
what  shall  have  been  enjoin'd  thereby;  [to]  manage  the  general  [Continental] 
Business  and  Interests;  to  receive  applications  from  foreign  Countries;  [to] 
prepare  Matters  for  the  Consideration  of  the  Congress;  to  fill  up,  [pro  tempore,] 
[continental]  offices,  that  fall  vacant;  and  to  draw  on  the  General  Treasurer  for 
such  Monies  as  may  be  necessary  for  general  Services,  and  appropriated  by  the 
Congress  to  such  Services. 

ART.  X. 

No  Colony  shall  engage  in  an  offensive  War  with  any  Nation  of  Indians  with- 
out the  Consent  of  the  Congress,  or  great  Council  above  mentioned,  who  are  first 
to  consider  the  Justice  and  Necessity  of  such  War. 

ART.  XI. 

A  perpetual  Alliance,  offensive  and  defensive,  is  to  be  entred  into  as  soon  as 
may  be  with  the  Six  Nations ;  their  Limits  to  be  ascertain'd  and  secur'd  to  them ; 
their  Land  not  to  be  encroach'd  on,  nor  any  private  [or  Colony]  Purchases  made 
of  them  hereafter  to  be  held  good;  nor  any  [Contract  for  Lands]  to  be  made,  but 
between  the  Great  Council  [of  the  Indians]  at  Onondaga  and  the  General  Con- 


APPENDIX  491 

gress.  The  Boundaries  and  Lands  of  all  the  other  Indians  shall  also  be  [ascer- 
tain'd  and]  secur'd  to  them  [in  the  same  manner,]  and  Persons  appointed  to 
reside  among  them  in  proper  Districts ;  who  shall  take  care  to  prevent  Injustice 
in  the  Trade  with  them ;  [and  be  enabled  at  our  general  Expence,]  by  occasional 
small  supplies,  to  relieve  their  personal  Wants  and  Distresses.  And  all  Purchases 
from  them  shall  be  by  the  Congress,  for  the  General  Advantage  and  Benefit  of 
the  United  Colonies. 

ART.  XII. 

As  all  new  Institutions  may  have  Imperfections,  which  only  Time  and  Ex- 
perience can  discover,  it  is  agreed,  that  the  General  Congress,  from  time  [to  time,] 
shall  propose  such  amendments  of  the  Constitution  as  may  be  found  necessary; 
which,  being  approv'd  by  a  Majority  of  the  Colony  Assemblies,  shall  be  equally 
binding  with  the  rest  of  the  Articles  of  this  Confederation. 

ART.  XIII. 

Any  and  every  Colony  from  Great  Britain  [upon  the  continent  of  North 
America,]  not  at  present  engag'd  in  our  Association,  may,  upon  application  [and 
joining  the  said  Association,]  be  receiv'd  into  the  Confederation,  viz.  [Ireland,] 
the  West  India  Islands,  Quebec,  St.  John's,  Nova  Scotia,  Bermudas,  and  the  East 
and  West  Floridas ;  and  shall  [thereupon]  be  entitled  to  all  the  advantages  of  our 
Union,  mutual  Assistance,  and  Commerce. 

These  Articles  shall  be  propos'd  to  the  several  Provincial  Conventions  or 
Assemblies,  to  be  by  them  consider'd ;  and  if  approved,  they  are  advis'd  to  im- 
power  their  Delegates  to  agree  to  and  ratify  the  same  in  the  ensuing  Congress. 
After  which  the  Union  thereby  establish'd  is  to  continue  firm,  till  the  Terms  of 
Reconciliation  proposed  in  the  Petition  of  the  last  Congress  to  the  King  are 
agreed  to;  till  the  Acts  since  made,  restraining  the  American  Commerce  [and 
Fisheries,]  are  repeal'd ;  till  Reparation  is  made  for  the  Injury  done  to  Boston, 
by  shutting  up  its  Port,  for  the  Burning  of  Charlestown,  and  for  the  Expence  of 
this  unjust  War ;  and  till  all  the  British  Troops  are  withdrawn  from  America. 
On  the  Arrival  of  these  Events,  the  Colonies  return  to  their  former  Connection 
and  Friendship  with  Britain :  But  on  Failure  thereof,  this  Confederation  is  to 
be  perpetual. 

Read  Before  Congress  July  21,  1775 

Whereas.1     It  hath  pleased  God  to  bless  these  countries  with  a  most  plentiful 

'The  Resolutions  which  follow  were  printed  by  Mr.  Bigelow  ("The  Complete  Works  of 
Benjamin  Franklin,"  Vol.  V,  p.  554)  from  the  original  Ms.  in  D.  S.  W.  They  had  been  earlier 
printed  in  the  Archives  of  New  Jersey,  Vol.  X,  p.  691.  The  use  of  brackets,  etc.,  in  the  fol- 
lowing text  is  thus  explained  by  Mr.  Worthington  C.  Ford.  "As  I  find  sonic  differences 
between  the  articles  as  printed  in  the  New  Jersey  Archives,  I  have  taken  the  original  on  the 
enclosed  sheets,  giving  the  parts  erased,  and  also  distinguishing  the  carets  or  interlinear 
words  thus  [].  The  'free-trade'  resolutions  were  brought  in  on  the  same  day  as  the  articles, 
are  written  on  the  same  paper,  and  all  in  B.  F.'s  Ms.  I  am  quite  sure  they  originally  formed 
a  part  of  the  articles  (although  not  numbered  and  placed  in  a  different  volume  in  the  records 
of  the  Continental  Congress).  They  were  even  endorsed  'Articles  of  Confederation,'  though 
a  pen  was  afterwards  run  through  the  endorsement." —  Smyth's  note. 


492  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

harvest,  whereby  much  corn  and  other  provisions  can  be  spared  to  foreign  nations 
who  mav  want  the  same.  Resolved,  That  [after  the  expiration  of  Six  Months] 
from  (and  after)1  the  [20th  of  July  Instant,]  (being  one  full  year  after)1  [being] 
the  Dav  appointed  bv  a  late  Act  of  the  Parliament  of  Great  Britain,  for  restrain- 
ing the  Trade  of  the  Confederate  Colonies,  all  Custom-Houses  [therein]  (if  the 
Act  be  not  first  rescinded)  shall  be  shut  up,  and  all  officers  of  the  same  discharged 
from  the  Execution  of  their  several  Functions,  and  all  the  Ports  of  the  said  Col- 
onies are  hereby  declared  to  be  thenceforth  open  to  the  Ships  of  every  State  in 
Europe  that  will  admit  of  our  Commerce  and  protect  it ;  who  may  [torn  off]  and 
expose  to  sale  free  of  all  Duties  their  respective  Produce  and  Manufactures,  and 
everv  kind  of  Merchandize,  excepting  Teas,  and  the  Merchandize  of  Great  Brit- 
ain, Ireland,  and  the  British  West  India  Islands. 

Resolved,  That  we  will  to  the  utmost  of  our  Power,  maintain  and  support  this 
Freedom  of  Commerce  for  [two]  years  certain  after  its  Commencement,  any 
reconciliation  between  us  and  Britain  notwithstanding;  and  as  much  longer  be- 
yond that  term,  as  the  late  Acts  of  Parliament  for  restoring  the  Restraining  the 
Commerce  and  fisheries,  and  altering  the  Laws  and  Charters  of  any  of  the  Colo- 
nies, shall  continue  unrepealed. 

Endorsed  —  No.  2.  (Articles  of  Confederation)  A  proposal  for  opening 
the  ports  of  N.  A.  bro'  in  by  committee  —  read  July  21,  1775  —  on  motion  post- 
poned for  future  consideration. 


V.     THE  DECLARATION  OF  INDEPENDENCE,  JULY  4,  1776.2 
The  unanimous  Declaration  of  the  thirteen  united  States  of  America. 

When  in  the  Course  of  human  events,  it  becomes  necessary  for  one  people  to 
dissolve  the  political  bands  which  have  connected  them  with  another,  and  to  as- 
sume among  the  Powers  of  the  earth,  the  separate  and  equal  station  to  which  the 
Laws  of  Nature  and  of  Nature's  God  entitle  them,  a  decent  respect  to  the  opin- 
ions of  mankind  requires  that  they  should  declare  the  causes  which  impel  them 
to  the  separation. 

We  hold  these  truths  to  be  self-evident,  that  all  men  are  created  equal,  that 
they  are  endowed  by  their  Creator  with  certain  unalienable  Rights,  that  among 
these  are  Life,  Liberty  and  the  pursuit  of  Happiness.  That  to  secure  these 
rights,  Governments  are  instituted  among  Men,  deriving  their  just  powers  from 
the  consent  of  the  governed,  That  whenever  any  Form  of  Government  becomes 
destructive  of  these  ends,  it  is  the  Right  of  the  People  to  alter  or  to  abolish  it, 
and  to  institute  new  Government,  laying  its  foundation  on  such  principles  and 
organizing  its  powers  in  such  form,  as  to  them  shall  seem  most  likely  to  effect 
their  Safety  and  Happiness.  .  .  . 

We,  therefore,  the  Representatives  of  the  united  States  of  America,  in  General 
Congress,  Assembled,  appealing  to  the  Supreme  Judge  of  the  world  for  the  recti- 

1  The  words  in  italics  show  the  erasures  in  the  original  Ms. 

2  Revised  Statutes  of  the  United  States,  1878,  pp.  3-6. 


APPENDIX  493 

tude  of  our  intentions,  do,  in  the  Name,  and  by  Authority  of  the  good  People  of 
these  Colonies,  solemnly  publish  and  declare,  That  these  United  Colonies  are,  and 
of  Right  ought  to  be  Free  and  Independent  States ;  that  they  are  Absolved  from 
all  Allegiance  to  the  British  Crown,  and  that  all  political  connection  between  them 
and  the  State  of  Great  Britain,  is  and  ought  to  be  totally  dissolved ;  and  that  as 
Free  and  Independent  States,  they  have  full  Power  to  levy  War,  conclude  Peace, 
contract  Alliances,  establish  Commerce,  and  to  do  all  other  Acts  and  Things 
which  Independent  States  may  of  right  do.  And  for  the  support  of  this  Declara- 
tion, with  a  firm  reliance  on  the  Protection  of  Divine  Providence,  we  mutually 
pledge  to  each  other  our  Lives,  our  Fortunes  and  our  sacred  Honor. 

JOHN  HANCOCK. 

New  Hampshire 

josiah  bartlett 
Wm.  Whipple 
Matthew  Thornton 
Massachusetts  Bay 

Saml.  Adams 
John  Adams 
Robt.  Treat  Paine 
Elbridge  Gerry 
Rhode  Island 

Step.  Hopkins 
William  Ellery 
Connecticut 

Roger  Sherman 
Sam'el  Huntington 
Wm.  Williams 
Oliver  Wolcott 
New  York 

Wm.  Floyd 
Phil.  Livingston 
Frans.  Lewis 
Lewis  Morris 
New  Jersey 

Richd.  Stockton 
Jno.  Witherspoon 
Fras.  Hopkinson 
John  Hart 
Abra.  Clark 
Pennsylvania 

Robt.  Morris 
Benjamin  Rush 
Benja.  Franklin 
John  Morton 


494        the  united  states:  a  study  in  international  organization 

Geo.  Clymer 

J  AS.  Smith 

Geo.  Taylor 

James  Wilson 

Geo.  Ross 
Delaware 

Caesar  Rodney 

Geo.  Read 

Tho.  M'Kean 
Maryland 

Samuel  Chase 

\Ym.  Paca 

Thos.  Stone 

Charles  Carroll  of  Carrollton 
Virginia 

George  Wythe 

Richard  Henry  Lee 

Th.  Jefferson 

Benja.  Harrison 

Thos.  Nelson,  Jr. 

Francis  Lightfoot  Lee 

Carter  Braxton 
North  Carolina 

Wm.  Hooper 

Joseph  Hewes 

John  Penn 
South  Carolina 

Edward  Rutledge 

Thos.  Heyward,  Junr. 

Thomas  Lynch,  Junr. 

Arthur  Middleton 
Georgia 

Button  Gwinnett 

Lymax  Hall 

Geo.  Walton 

VI.  ARTICLES  OF  CONFEDERATION  ADOPTED  BY  CONGRESS, 
NOVEMBER  15,  1777,  RATIFIED  BY  THE  LAST  OF  THE  THIR- 
TEEN STATES,  MARCH  1,  1781.1 

To  all  to  whom  these  Presents  shall  come,  zve  the  undersigned  Delegates  of  the 
States  affixed  to  our  Names  send  greeting. 
Whereas  the  Delegates  of  the  United  States  of  America  in  Congress  assembled 
did  on  the  fifteenth  day  of  November  in  the  Year  of  our  Lord  One  Thousand 

1  Revised  Statutes  of  the  United  States,  1878,  pp.  7-12. 


APPENDIX  495 

Seven  Hundred  and  Seventyseven,  and  in  the  Second  Year  of  the  Independence 
of  America  agree  to  certain  articles  of  Confederation  and  perpetual  Union  be- 
tween the  States  of  Newhampshire,  Massachusetts-bay,  Rhodeisland  and  Provi- 
dence Plantations,  Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Dela- 
ware, Maryland,  Virginia,  North-Carolina,  South-Carolina  and  Georgia  in  the 
Words  following,  viz. 

"Articles  of  Confederation  and  perpetual  Union  between  the  States  of  New- 
hampshire, Massachusetts-bay,  Rhodeisland  and  Providence  Plantations, 
Connecticut,  New-York,  New-Jersey,  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North-Carolina,  South-Carolina  and  Georgia. 

Article  I.  The  stile  of  this  confederacy  shall  be  "  The  United  States  of 
America." 

Article  II.  Each  State  retains  its  sovereignty,  freedom  and  independence, 
and  every  power,  jurisdiction  and  right,  which  is  not  by  this  confederation  ex- 
pressly delegated  to  the  United  States,  in  Congress  assembled. 

Article  III.  The  said  States  hereby  severally  enter  into  a  firm  league  of 
friendship  with  each  other,  for  their  common  defence,  the  security  of  their  lib- 
erties, and  their  mutual  and  general  welfare,  binding  themselves  to  assist  each 
other,  against  all  force  offered  to,  or  attacks  made  upon  them,  or  any  of  them, 
on  account  of  religion,  sovereignty,  trade,  or  any  other  pretence  whatever. 

Article  IV.  The  better  to  secure  and  perpetuate  mutual  friendship  and  in- 
tercourse among  the  people  of  the  different  States  in  this  Union,  the  free  inhabi- 
tants of  each  of  these  States,  paupers,  vagabonds  and  fugitives  from  justice  ex- 
cepted, shall  be  entitled  to  all  privileges  and  immunities  of  free  citizens  in  the 
several  States ;  and  the  people  of  each  State  shall  have  free  ingress  and  regress 
to  and  from  any  other  State,  and  shall  enjoy  therein  all  the  privileges  of  trade 
and  commerce,  subject  to  the  same  duties,  impositions  and  restrictions  as  the 
inhabitants  thereof  respectively,  provided  that  such  restrictions  shall  not  extend 
so  far  as  to  prevent  the  removal  of  property  imported  into  any  State,  to  any 
other  State  of  which  the  owner  is  an  inhabitant;  provided  also  that  no  imposi- 
tion, duties  or  restriction  shall  be  laid  by  any  State,  on  the  property  of  the 
United  States,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with  treason,  felony,  or  other  high  misde- 
meanor in  any  State,  shall  flee  from  justice,  and  be  found  in  any  of  the  United 
States,  he  shall  upon  demand  of  the  Governor  or  Executive  power,  of  the  State 
from  which  he  fled,  be  delivered  up  and  removed  to  the  State  having  jurisdiction 
of  his  offence. 

Full  faith  and  credit  .shall  be  given  in  each  of  these  States  to  the  records,  acts 
and  judicial  proceedings  of  the  courts  and  magistrates  of  every  other  State. 

Article  V.  For  the  more  convenient  management  of  the  general  interest  of 
the  United  States,  delegates  shall  be  annually  appointed  in  such  manner  as  the 
legislature  of  each  State  shall  direct,  to  meet  in  Congress  on  the  first  Monday  in 
November,  in  every  year,  with  a  power  reserved  to  each  State,  to  recall  its  dele- 


496  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

gates,  or  any  of  them,  at  any  time  within  the  year,  and  to  send  others  in  their 
stead,  for  the  remainder  of  the  year. 

No  State  shall  be  represented  in  Congress  by  less  than  two,  nor  by  more  than 
seven  members ;  and  no  person  shall  be  capable  of  being  a  delegate  for  more 
than  three  years  in  any  term  of  six  years ;  nor  shall  any  person,  being  a  delegate, 
be  capable  of  holding  any  office  under  the  United  States,  for  which  he,  or  another 
for  his  benefit  receives  any  salary,  fees  or  emolument  of  any  kind. 

Each  State  shall  maintain  its  own  delegates  in  a  meeting  of  the  States,  and 
while  they  act  as  members  of  the  committee  of  the  States. 

In  determining  questions  in  the  United  States,  in  Congress  assembled,  each 
State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  impeached  or  questioned 
in  any  court,  or  place  out  of  Congress,  and  the  members  of  Congress  shall  be 
protected  in  their  persons  from  arrests  and  imprisonments,  during  the  time  of 
their  going  to  and  from,  and  attendance  on  Congress,  except  for  treason,  felony, 
or  breach  of  the  peace. 

Article  VI.  No  State  without  the  consent  of  the  United  States  in  Congress 
assembled,  shall  send  any  embassy  to,  or  receive  any  embassy  from,  or  enter  into 
any  conference,  agreement,  alliance  or  treaty  with  any  king  prince  or  state;  nor 
shall  any  person  holding  any  office  of  profit  or  trust  under  the  United  States,  or 
any  of  them,  accept  of  any  present,  emolument,  office  or  title  of  any  kind  whatever 
from  any  king,  prince  or  foreign  state ;  nor  shall  the  United  States  in  Congress 
assembled,  or  any  of  them,  grant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confederation  or  alliance 
whatever  between  them,  without  the  consent  of  the  United  States  in  Congress 
assembled,  specifying  accurately  the  purposes  for  which  the  same  is  to  be  en- 
tered into,  and  how  long  it  shall  continue. 

No  State  shall  lay  any  imposts  or  duties,  which  may  interfere  with  any  stipu- 
lations in  treaties,  entered  into  by  the  United  States  in  Congress  assembled,  with 
any  king,  prince  or  state,  in  pursuance  of  any  treaties  already  proposed  by  Con- 
gress, to  the  courts  of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  State,  except  such 
number  only,  as  shall  be  deemed  necessary  by  the  United  States  in  Congress  as- 
sembled, for  the  defence  of  such  State,  or  its  trade ;  nor  shall  any  body  of  forces 
be  kept  up  by  any  State,  in  time  of  peace,  except  such  number  only,  as  in  the 
judgment  of  the  United  States,  in  Congress  assembled,  shall  be  deemed  requisite 
to  garrison  the  forts  necessary  for  the  defence  of  such  State;  but  every  State 
shall  always  keep  up  a  well  regulated  and  disciplined  militia,  sufficiently  armed 
and  accoutered,  and  shall  provide  and  constantly  have  ready  for  use,  in  public 
stores,  a  due  number  of  field  pieces  and  tents,  and  a  proper  quantity  of  arms, 
ammunition  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of  the  United  States  in 
Congress  assembled,  unless  such  State  be  actually  invaded  by  enemies,  or  shall 
have  received  certain  advice  of  a  resolution  being   formed  by  some  nation  of 


APPENDIX  497 

Indians  to  invade  such  State,  and  the  danger  is  so  imminent  as  not  to  admit  of  a 
delay,  till  the  United  States  in  Congress  assembled  can  be  consulted :  nor  shall 
any  State  grant  commissions  to  any  ships  or  vessels  of  war,  nor  letters  of  marque 
or  reprisal,  except  it  be  after  a  declaration  of  war  by  the  United  States  in  Con- 
gress assembled,  and  then  only  against  the  kingdom  or  state  and  the  subjects 
thereof,  against  which  war  has  been  so  declared,  and  under  such  regulations  as 
shall  be  established  by  the  United  States  in  Congress  assembled,  unless  such 
State  be  infested  by  pirates,  in  which  case  vessels  of  war  may  be  fitted  out  for 
that  occasion,  and  kept  so  long  as  the  danger  shall  continue,  or  until  the  United 
States  in  Congress  assembled  shall  determine  otherwise. 

Article  VII.  When  land-forces  are  raised  by  any  State  for  the  common  de- 
fence, all  officers  of  or  under  the  rank  of  colonel,  shall  be  appointed  by  the  Legis- 
lature of  each  State  respectively  by  whom  such  forces  shall  be  raised,  or  in  such 
manner  as  such  State  shall  direct,  and  all  vacancies  shall  be  filled  up  by  the  State 
which  first  made  the  appointment. 

Article  VIII.  All  charges  of  war,  and  all  other  expenses  that  shall  be  in- 
curred for  the  common  defence  or  general  welfare,  and  allowed  by  the  United 
States  in  Congress  assembled,  shall  be  defrayed  out  of  a  common  treasury,  which 
shall  be  supplied  by  the  several  States,  in  proportion  to  the  value  of  all  land 
within  each  State,  granted  to  or  surveyed  for  any  person,  as  such  land  and  the 
buildings  and  improvements  thereon  shall  be  estimated  according  to  such  mode 
as  the  United  States  in  Congress  assembled,  shall  from  time  to  time  direct  and 
appoint. 

The  taxes  for  paying  that  proportion  shall  be  laid  and  levied  by  the  authority 
and  direction  of  the  Legislatures  of  the  several  States  within  the  time  agreed  upon 
by  the  United  States  in  Congress  assembled. 

Article  IX.  The  United  States  in  Congress  assembled,  shall  have  the  sole 
and  exclusive  right  and  power  of  determining  on  peace  and  war,  except  in  the 
cases  mentioned  in  the  sixth  article  —  of  sending  and  receiving  ambassadors  — 
entering  into  treaties  and  alliances,  provided  that  no  treaty  of  commerce  shall  be 
made  whereby  the  legislative  power  of  the  respective  States  shall  be  restrained 
from  imposing  such  imposts  and  duties  on  foreigners,  as  their  own  people  are 
subjected  to,  or  from  prohibiting  the  exportation  or  importation  of  any  species 
of  goods  or  commodities  whatsoever  —  of  establishing  rules  for  deciding  in  all 
cases,  what  captures  on  land  or  water  shall  be  legal,  and  in  what  manner  prizes 
taken  by  land  or  naval  forces  in  the  service  of  the  United  States  shall  be  divided 
or  appropriated  —  of  granting  letters  of  marque  and  reprisal  in  times  of  peace  — 
appointing  courts  for  the  trial  of  piracies  and  felonies  committed  on  the  high 
seas  and  establishing  courts  for  receiving  and  determining  finally  appeals  in  all 
cases  of  captures,  provided  that  no  member  of  Congress  shall  be  appointed  a 
judge  of  any  of  the  said  courts. 

The  United  States  in  Congress  assembled  shall  also  be  the  last  resort  on  appeal 
in  all  disputes  and  differences  now  subsisting  or  that  hereafter  may  arise  between 
two  or  more  States  concerning  boundary,  jurisdiction  or  any  other  cause  what- 


498  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL    ORGANIZATION 

ever ;  which  authority  shall  always  be  exercised  in  the  manner  following.  When- 
ever the  legislative  or  executive  authority  or  lawful  agent  of  any  State  in  con- 
troversy with  another  shall  present  a  petition  to  Congress,  stating  the  matter  in 
question  and  praying  for  a  hearing,  notice  thereof  shall  be  given  by  order  of 
Congress  to  the  legislative  or  executive  authority  of  the  other  State  in  controversy, 
and  a  day  assigned  for  the  appearance  of  the  parties  by  their  lawful  agents,  who 
shall  then  be  directed  to  appoint  by  joint  consent,  commissioners  or  judges  to 
constitute  a  court  for  hearing  and  determining  the  matter  in  question :  but  if  they 
can  not  agree,  Congress  shall  name  three  persons  out  of  each  of  the  United  States, 
and  from  the  list  of  such  persons  each  party  shall  alternately  strike  out  one,  the 
petitioners  beginning,  until  the  number  shall  be  reduced  to  thirteen;  and  from 
that  number  not  less  than  seven,  nor  more  than  nine  names  as  Congress  shall 
direct,  shall  in  the  presence  of  Congress  be  drawn  out  by  lot,  and  the  persons 
whose  names  shall  be  so  drawn  or  any  five  of  them,  shall  be  commissioners  or 
judges,  to  hear  and  finally  determine  the  controversy,  so  always  as  a  major  part 
of  the  judges  who  shall  hear  the  cause  shall  agree  in  the  determination:  and  if 
either  party  shall  neglect  to  attend  at  the  day  appointed,  without  showing  reasons, 
which  Congress  shall  judge  sufficient,  or  being  present  shall  refuse  to  strike,  the 
Congress  shall  proceed  to  nominate  three  persons  out  of  each  State,  and  the 
Secretary  of  Congress  shall  strike  in  behalf  of  such  party  absent  or  refusing; 
and  the  judgment  and  sentence  of  the  court  to  be  appointed,  in  the  manner  before 
prescribed,  shall  be  final  and  conclusive ;  and  if  any  of  the  parties  shall  refuse  to 
submit  to  the  authority  of  such  court,  or  to  appear  or  defend  their  claim  or  cause, 
the  court  shall  nevertheless  proceed  to  pronounce  sentence,  or  judgment,  which 
shall  in  like  manner  be  final  and  decisive,  the  judgment  or  sentence  and  other 
proceedings  being  in  either  case  transmitted  to  Congress,  and  lodged  among  the 
acts  of  Congress  for  the  security  of  the  parties  concerned:  provided  that  every 
commissioner,  before  he  sits  in  judgment,  shall  take  an  oath  to  be  administered 
by  one  of  the  judges  of  the  supreme  or  superior  court  of  the  State,  where  the 
cause  shall  be  tried,  "  well  and  truly  to  hear  and  determine  the  matter  in  question, 
according  to  the  best  of  his  judgment,  without  favour,  affection  or  hope  of 
reward :  "  provided  also  that  no  State  shall  be  deprived  of  territory  for  the 
benefit  of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil  claimed  under  different 
grants  of  two  or  more  States,  whose  jurisdiction  as  they  may  respect  such  lands, 
and  the  States  which  passed  such  grants  are  adjusted,  the  said  grants  or  either  of 
them  being  at  the  same  time  claimed  to  have  originated  antecedent  to  such  settle- 
ment of  jurisdiction,  shall  on  the  petition  of  either  party  to  the  Congress  of  the 
United  States,  be  finally  determined  as  near  as  may  be  in  the  same  manner  as  is 
before  prescribed  for  deciding  disputes  respecting  territorial  jurisdiction  between 
different  States. 

The  United  States  in  Congress  assembled  shall  also  have  the  sole  and  exclu- 
sive right  and  power  of  regulating  the  alloy  and  value  of  coin  struck  by  their  own 
authority,  or  by  that  of  the  respective  States. —  fixing  the  standard  of  weights 


APPENDIX  499 

and  measures  throughout  the  United  States. —  regulating  the  trade  and  managing 
all  affairs  with  the  Indians,  not  members  of  any  of  the  States,  provided  that  the 
legislative  right  of  any  State  within  its  own  limits  be  not  infringed  or  violated  — 
establishing  and  regulating  post-offices  from  one  State  to  another,  throughout  all 
the  United  States,  and  exacting  such  postage  on  the  papers  passing  thro'  the 
same  as  may  be  requisite  to  defray  the  expenses  of  the  said  office  —  appointing 
all  officers  of  the  land  forces,  in  the  service  of  the  United  States,  excepting  regi- 
mental officers  —  appointing  all  the  officers  of  the  naval  forces,  and  commission- 
ing all  officers  whatever  in  the  service  of  the  United  States  —  making  rules  for 
the  government  and  regulation  of  the  said  land  and  naval  forces,  and  directing 
their  operations. 

The  United  States  in  Congress  assembled  shall  have  authority  to  appoint  a 
committee,  to  sit  in  the  recess  of  Congress,  to  be  denominated  "  A  Committee  of 
the  States,"  and  to  consist  of  one  delegate  from  each  State ;  and  to  appoint  such 
other  committees  and  civil  officers  as  may  be  necessary  for  managing  the  general 
affairs  of  the  United  States  under  their  direction  —  to  appoint  one  of  their  num- 
ber to  preside,  provided  that  no  person  be  allowed  to  serve  in  the  office  of  presi- 
dent more  than  one  year  in  any  term  of  three  years ;  to  ascertain  the  necessary 
sums  of  money  to  be  raised  for  the  service  of  the  United  States,  and  to  appro- 
priate and  apply  the  same  for  defraying  the  public  expenses  —  to  borrow  money, 
or  emit  bills  on  the  credit  of  the  United  States,  transmitting  every  half  year  to 
the  respective  States  an  account  of  the  sums  of  money  so  borrowed  or  emitted, — 
to  build  and  equip  a  navy  —  to  agree  upon  the  number  of  land  forces,  and  to 
make  requisitions  from  each  State  for  its  quota,  in  proportion  to  the  number  of 
white  inhabitants  in  such  State ;  which  requisition  shall  be  binding,  and  thereupon 
the  Legislature  of  each  State  shall  appoint  the  regimental  officers,  raise  the  men 
and  cloath,  arm  and  equip  them  in  a  soldier  like  manner,  at  the  expense  of  the 
United  States ;  and  the  officers  and  men  so  cloathed,  armed  and  equipped  shall 
march  to  the  place  appointed,  and  within  the  time  agreed  on  by  the  United  States 
in  Congress  assembled:  but  if  the  United  States  in  Congress  assembled  shall,  on 
consideration  of  circumstances  judge  proper  that  any  State  should  not  raise  men, 
or  should  raise  a  smaller  number  than  its  quota,  and  that  any  other  State  should 
raise  a  greater  number  of  men  than  the  quota  thereof,  such  extra  number  shall 
be  raised,  officered,  cloathed,  armed  and  equipped  in  the  same  manner  as  the  quota 
of  such  State,  unless  the  legislature  of  such  State  shall  judge  that  such  extra 
number  cannot  be  safely  spared  out  of  the  same,  in  which  case  they  shall  raise 
officer,  cloath,  arm  and  equip  as  many  of  such  extra  number  as  they  judge  can 
be  safely  spared.  And  the  officers  and  men  so  cloathed,  armed  and  equipped, 
shall  march  to  the  place  appointed,  and  within  the  time  agreed  on  by  the  United 
States  in  Congress  assembled. 

The  United  States  in  Congress  assembled  shall  never  engage  in  a  war,  nor 
grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor  enter  into  any  treaties 
or  alliances,  nor  coin  money,  nor  regulate  the  value  thereof,  nor  ascertain  the 
sums  and  expenses  necessary  for  the  defence  and  welfare  of  the  United  States, 


500  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

or  any  of  them,  nor  emit  bills,  nor  borrow  money  on  the  credit  of  the  United 
States,  nor  appropriate  money,  nor  agree  upon  the  number  of  vessels  of  war,  to 
be  built  or  purchased,  or  the  number  of  land  or  sea  forces  to  be  raised,  nor  ap- 
point a  commander  in  chief  of  the  army  or  navy,  unless  nine  States  assent  to  the 
same:  nor  shall  a  question  on  any  other  point,  except  for  adjourning  from  day 
to  day  be  determined,  unless  by  the  votes  of  a  majority  of  the  United  States  in 
Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn  to  any  time 
within  the  year,  and  to  any  place  within  the  United  States,  so  that  no  period  of 
adjournment  be  for  a  longer  duration  than  the  space  of  six  months,  and  shall 
publish  the  journal  of  their  proceedings  monthly  except  such  parts  thereof  re- 
lating to  treaties,  alliances  or  military  operations,  as  in  their  judgment  require 
secresy ;  and  the  yeas  and  nays  of  the  delegates  of  each  State  on  any  question  shall 
be  entered  on  the  journal,  when  it  is  desired  by  any  delegate ;  and  the  delegates 
of  a  State,  or  any  of  them,  at  his  or  their  request  shall  be  furnished  with  a 
transcript  of  the  said  journal,  except  such  parts  as  are  above  excepted,  to  lay 
before  the  Legislatures  of  the  several  States. 

Article  X.  The  committee  of  the  States,  or  any  nine  of  them,  shall  be  au- 
thorized to  execute,  in  the  recess  of  Congress,  such  of  the  powers  of  Congress 
as  the  United  States  in  Congress  assembled,  by  the  consent  of  nine  States,  shall 
from  time  to  time  think  expedient  to  vest  them  with ;  provided  that  no  power  be 
delegated  to  the  said  committee,  for  the  exercise  of  which,  by  the  articles  of  con- 
federation, the  voice  of  nine  States  in  the  Congress  of  the  United  States  assem- 
bled is  requisite. 

Article  XI.  Canada  acceding  to  this  confederation,  and  joining  in  the 
measures  of  the  United  States,  shall  be  admitted  into,  and  entitled  to  all  the  ad- 
vantages of  this  Union :  but  no  other  colony  shall  be  admitted  into  the  same,  unless 
such  admission  be  agreed  to  by  nine  States. 

Article  XII.  All  bills  of  credit  emitted,  monies  borrowed  and  debts  con- 
tracted by,  or  under  the  authority  of  Congress,  before  the  assembling  of  the 
United  States,  in  pursuance  of  the  present  confederation,  shall  be  deemed  and 
considered  as  a  charge  against  the  United  States,  for  payment  and  satisfaction 
whereof  the  said  United  States,  and  the  public  faith  are  hereby  solemnly  pledged. 

Article  XIII.  Every  State  shall  abide  by  the  determinations  of  the  United 
States  in  Congress  assembled,  on  all  questions  which  by  this  confederation  are 
submitted  to  them.  And  the  articles  of  this  confederation  shall  be  inviolably 
observed  by  every  State,  and  the  Union  shall  be  perpetual ;  nor  shall  any  alter- 
ation at  any  time  hereafter  be  made  in  any  of  them ;  unless  such  alteration  be 
agreed  to  in  a  Congress  of  the  United  States,  and  be  afterwards  confirmed  by 
the  Legislatures  of  every  State. 

And  whereas  it  hath  pleased  the  Great  Governor  of  the  world  to  incline  the 
hearts  of  the  Legislatures  we  respectively  represent  in  Congress,  to  approve  of, 
and  to  authorize  us  to  ratify  the  said  articles  of  confederation  and  perpetual 
union.     Know  ye  that  we  the  undersigned  delegates,  by  virtue  of  the  power  and 


APPENDIX 


501 


authority  to  us  given  for  that  purpose,  do  by  these  presents,  in  the  name  and  in 
behalf  of  our  respective  constituents,  fully  and  entirely  ratify  and  confirm  each 
and  every  of  the  said  articles  of  confederation  and  perpetual  union,  and  all  and 
singular  the  matters  and  things  therein  contained:  And  we  do  further  solemnly 
plight  and  engage  the  faith  of  our  respective  constituents,  that  they  shall  abide 
by  the  determinations  of  the  United  States  in  Congress  assembled,  on  all  questions, 
which  by  the  said  confederation  are  submitted  to  them.  And  that  the  articles 
thereof  shall  be  inviolably  observed  by  the  States  we  respectively  represent,  and 
that  the  Union  shall  be  perpetual. 

In  witness  whereof  we  have  hereunto  set  our  hands  in  Congress.  Done  at 
Philadelphia  in  the  State  of  Pennsylvania  the  ninth  day  of  July  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and  seventy-eight,  and  in  the  third  year 
of  the  independence  of  America. 

On  the  part  &  behalf  of  the  State  of  New  Hampshire. 

JOSIAH   BARTLETT, 

John  Wentworth,  Junr., 

August  8th,  1778. 

On  the  part  and  behalf  of  the  State  of  Massachusetts  Bay. 

John  Hancock, 
Samuel  Adams, 
Eldbridge  Gerry, 
Francis  Dana, 
James  Lovell, 
Samuel  Holten. 

On  the  part  and  behalf  of  the  State  of  Rhode  Island  and  Providence  Plantations. 

William  Ellery, 
Henry  Marchant, 
John  Collins. 

On  the  part  and  behalf  of  the  State  of  Connecticut. 

Roger  Sherman, 
Samuel  Huntington, 
Oliver  Wolcott, 
Titus  Hosmer, 
Andrew  Adams. 

On  the  part  and  behalf  of  the  State  of  New  York. 

Jas.  Duane, 
Fra.  Lewis, 
Wm.  Duer, 
Gouv.  Morris. 

On  the  part  and  in  behalf  of  the  State  of  New  Jersey,  Novr.  z6,  1778. 

Jno.  Witherspoon, 
Nathl.  Scudder. 


502  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

On  the  part  and  behalf  of  the  State  of  Pennsylvania. 

Robt.  Morris, 

Daniel  Roberdeau, 

Jona.  Bayard  Smith, 

William  Clingan, 

Joseph  Reed,  22d  July,  1778. 
On  the  part  &  behalf  of  the  State  of  Delaware. 

Tho.  M'Kean,  Feby.  12,  1779. 

John  Dickinson,  May  5th,  1779. 

Nicholas  Van  Dyke. 
On  the  part  and  behalf  of  the  State  of  Maryland. 

John  Hanson,  March  1,  1781. 

Daniel  Carroll,  Mar.  1,  1781. 
On  the  part  and  behalf  of  the  State  of  Virginia. 

Richard  Henry  Lee, 

John  Banister, 

Thomas  Adams, 

Jno.  Harvie, 

Francis  Lightfoot  Lee. 
On  the  part  and  behalf  of  the  State  of  No.  Carolina. 

John  Penn,  July  21st,  1778. 

Corns.  Harnett, 

Jno.  Williams. 
On  the  part  &  behalf  of  the  State  of  South  Carolina. 

Henry  Laurens, 

William  Henry  Drayton, 

Jno.  Mathews, 

Richd.  Hutson, 

Thos.  Heyward,  Junr. 
On  the  part  &  behalf  of  the  State  of  Georgia. 

Jno.  Walton,  24th  July,  1778. 

Edwd.  Telfair, 

Edwd.  Langworthy. 

VII.    THE   CONSTITUTION   OF  THE   UNITED   STATES   ADOPTED 

SEPTEMBER  17,  1787,  IN  EFFECT  FROM  AXD 

AFTER  MARCH  4,  1789.1 

We  the  People  of  the  United  States,  in  Order  to  form  a  more  perfect  Union, 
establish  Justice,  insure  domestic  Tranquility,  provide  for  the  common  defence, 
promote  the  general  Welfare,  and  secure  the  Blessings  of  Liberty  to  ourselves  and 

1  The  text  of  the  Constitution,  and  the  amendments  thereto,  are  taken  from  the  Revised 
Statutes  of  the  United  States,  1878,  and  Senate  Document  No.  12,  63d  Congress,  1st  Session. 

The  numbers  prefixed  to  the  clauses  of  the  Constitution,  and  here  placed  in  parentheses, 
do  not  appear  in  the  original  text 


APPENDIX  503 

our  Posterity,  do  ordain  and  establish  this  Constitution  for  the  United  States 
of  America. 

Article  I 

Section  1.  All  legislative  Powers  herein  granted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall  consist  of  a  Senate  and  House  of  Repre- 
sentatives. 

Section  2.  (1)  The  House  of  Representatives  shall  be  composed  of  Members 
chosen  every  second  Year  by  the  People  of  the  several  States,  and  the  Electors  in 
each  State  shall  have  the  Qualifications  requisite  for  Electors  of  the  most  numer- 
ous Branch  of  the  State  Legislature. 

(2)  No  Person  shall  be  a  Representative  who  shall  not  have  attained  the  Age 
of  twenty-five  Years,  and  been  seven  Years  a  Citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  Inhabitant  of  that  State  in  which  he  shall  be1 
chosen. 

(3)  *  [Representatives  and  direct  Taxes  shall  be  apportioned  among  the  several 
States  which  may  be  included  within  this  Union,  according  to  their  respective 
Numbers,  which  shall  be  determined  by  adding  to  the  whole  Number  of  free 
Persons,  including  those  bound  to  Service  for  a  Term  of  Years,  and  excluding 
Indians  not  taxed,  three  fifths  of  all  other  Persons.]  The  actual  Enumeration 
shall  be  made  within  three  Years  after  the  first  Meeting  of  the  Congress  of  the 
United  States,  and  within  every  subsequent  Term  of  ten  Years,  in  such  Manner 
as  they  shall  by  Law  direct.  The  Number  of  Representatives  shall  not  exceed 
one  for  every  thirty  Thousand,  but  each  State  shall  have  at  Least  one  Repre- 
sentative ;  and  until  such  enumeration  shall  be  made,  the  State  of  New  Hamp- 
shire shall  be  entitled  to  chuse  three,  Massachusetts  eight,  Rhode-Island  and 
Providence  Plantations  one,  Connecticut  five,  New-York  six,  New  Jersey  four, 
Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virginia  ten,  North  Carolina 
five,  South  Carolina  five,  and  Georgia  three. 

<4)  When  vacancies  happen  in  the  Representation  from  any  State,  the  Execu- 
tive Authority  thereof  shall  issue  Writs  of  Election  to  fill  such  Vacancies. 

(B)  The  House  of  Representatives  shall  chuse  their  Speaker  and  other  Officers ; 
and  shall  have  the  sole  Power  of  Impeachment. 

Section  3.  [(1)  The  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  chosen  by  the  Legislature  thereof,  for  six  Years ;  and 
each  Senator  shall  have  one  Vote.]  f 

(2)  Immediately  after  they  shall  be  assembled  in  Consequence  of  the  first  Elec- 
tion, they  shall  be  divided  as  equally  as  may  be  into  three  Classes.  The  Seats  of 
the  Senators  of  the  first  Class  shall  be  vacated  at  the  Expiration  of  the  second 
Year,  of  the  second  Class  at  the  Expiration  of  the  fourth  Year,  and  of  the  third 
Class  at  the  Expiration  of  the  sixth  Year,  so  that  one-third  may  be  chosen  every 
second  Year;  and  if  Vacancies  happen  by  Resignation,  or  otherwise,  during  the 

*The  clause  included  in  brackets  is  amended  by  the  fourteenth  amendment,  second  section. 

t  The  first  paragraph  of  section  three  of  Article  1,  of  the  Constitution  of  the  United 
States,  and  so  much  of  paragraph  two  of  the  same  section  as  relates  to  filling  vacancies  are 
amended  by  the  seventeenth  amendment  to  the  Constitution. 


504  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Recess  of  the  Legislature  of  any  State,  the  Executive  thereof  may  make  tem- 
porary Appointments  [until  the  next  Meeting  of  the  Legislature,  which  shall  then 
fill  such  Vacancies]. 

(3)  ^i^  Person  shall  be  a  Senator  who  shall  not  have  attained  to  the  Age  of 
thirty  Years,  and  been  nine  Years  a  Citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  Inhabitant  of  that  State  for  which  he  shall  be  chosen. 

<4)  The  Vice  President  of  the  United  States  shall  be  President  of  the  Senate, 
but  shall  have  no  Vote,  unless  they  be  equally  divided. 

<5)  The  Senate  shall  chuse  their  other  Officers,  and  also  a  President  pro  tem- 
pore, in  the  Absence  of  the  Vice  President,  or  when  he  shall  exercise  the  Office  of 
President  of  the  United  States. 

<6)  The  Senate  shall  have  the  sole  Power  to  try  all  Impeachments.  When  sit- 
ting for  that  Purpose,  they  shall  be  on  Oath  or  Affirmation.  When  the  President 
of  the  United  States  is  tried,  the  Chief  Justice  shall  preside:  And  no  Person 
shall  be  convicted  without  the  Concurrence  of  two  thirds  of  the  Members  present. 

(7)  Judgment  in  Cases  of  Impeachment  shall  not  extend  further  than  to  re- 
moval from  Office,  and  disqualification  to  hold  and  enjoy  any  Office  of  honor, 
Trust  or  Profit  under  the  United  States :  but  the  Party  convicted  shall  neverthe- 
less be  liable  and  subject  to  Indictment,  Trial,  Judgment  and  Punishment,  ac- 
cording to  Law. 

Section  4.  m  The  Times,  Places  and  Manner  of  holding  Elections  for  Sena- 
tors and  Representatives,  shall  be  prescribed  in  each  State  by  the  Legislature 
thereof ;  but  the  Congress  may  at  any  time  by  Law  make  or  alter  such  Regula- 
tions, except  as  to  the  Places  of  chusing  Senators. 

121  The  Congress  shall  assemble  at  least  once  in  every  Year,  and  such  Meeting 
shall  be  on  the  first  Monday  in  December,  unless  they  shall  by  Law  appoint  a 
different  Day. 

Section  5.  (1)  Each  House  shall  be  the  Judge  of  the  Elections,  Returns  and 
Qualifications  of  its  own  Members,  and  a  Majority  of  each  shall  constitute  a 
Quorum  to  do  Business;  but  a  smaller  Number  may  adjourn  from  day  to  day, 
and  may  be  authorized  to  compel  the  Attendance  of  absent  Members,  in  such 
Manner,  and  under  such  Penalties  as  each  House  may  provide. 

<2)  Each  House  may  determine  the  Rules  of  its  Proceedings,  punish  its  Mem- 
bers for  disorderly  Behaviour,  and,  with  the  Concurrence  of  two  thirds,  expel  a 
Member. 

,3)  Each  House  shall  keep  a  Journal  of  its  Proceedings,  and  from  time  to  time 
publish  the  same,  excepting  such  Parts  as  may  in  their  Judgment  require  Secrecy ; 
and  the  Yea's  and  Nays  of  the  Members  of  either  House  on  any  question  shall,  at 
the  Desire  of  one  fifth  of  those  Present,  be  entered  on  the  Journal. 

<4)  Neither  House,  during  the  Session  of  Congress,  shall,  without  the  consent 
of  the  other,  adjourn  for  more  than  three  days,  nor  to  any  other  Place  than  that 
in  which  the  two  Houses  shall  be  sitting. 

Section  6.  (1)  The  Senators  and  Representatives  shall  receive  a  Compensa- 
tion for  their  Services,  to  be  ascertained  by  Law,  and  paid  out  of  the  Treasury  of 


APPENDIX  505 

the  United  States.  They  shall  in  all  Cases,  except  Treason,  Felony  and  Breach 
of  the  Peace,  be  privileged  from  Arrest  during  their  Attendance  at  the  Session  of 
their  respective  Houses,  and  in  going  to  and  returning  from  the  same;  and  for 
any  Speech  or  Debate  in  either  House,  they  shall  not  be  questioned  in  any  other 
Place. 

(2)  No  Senator  or  Representative  shall,  during  the  Time  for  which  he  was 
elected,  be  appointed  to  any  civil  Office  under  the  Authority  of  the  United  States, 
which  shall  have  been  created,  or  the  Emoluments  whereof  shall  have  been  en- 
creased  during  such  time;  and  no  Person  holding  any  Office  under  the  United 
States,  shall  be  a  Member  of  either  House  during  his  Continuance  in  Office. 

Section  7.  (1)  All  Bills  for  raising  Revenue  shall  originate  in  the  House  of 
Representatives ;  but  the  Senate  may  propose  or  concur  with  Amendments  as  on 
other  Bills. 

(2)  Every  Bill  which  shall  have  passed  the  House  of  Representatives  and  the 
Senate,  shall,  before  it  become  a  Law,  be  presented  to  the  President  of  the  United 
States ;  If  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it,  with  his  Objec- 
tions to  that  House  in  which  it  shall  have  originated,  who  shall  enter  the  Objec- 
tions at  large  on  their  Journal,  and  proceed  to  reconsider  it.  If  after  such  Recon- 
sideration two  thirds  of  that  House  shall  agree  to  pass  the  Bill,  it  shall  be  sent, 
together  with  the  Objections,  to  the  other  House,  by  which  it  shall  likewise  be 
reconsidered,  and  if  approved  by  two  thirds  of  that  House,  it  shall  become  a  Law. 
But  in  all  such  Cases  the  Votes  of  both  Houses  shall  be  determined  by  Yeas  and 
Nays,  and  the  Names  of  the  Persons  voting  for  and  against  the  Bill  shall  be 
entered  on  the  Journal  of  each  House  respectively.  If  any  Bill  shall  not  be  re- 
turned by  the  President  within  ten  Days  (Sundays  excepted)  after  it  shall  have 
been  presented  to  him,  the  Same  shall  be  a  Law,  in  like  Manner  as  if  he  had 
signed  it,  unless  the  Congress  by  their  Adjournment  prevent  its  Return,  in 
which  Case  it  shall  not  be  a  Law. 

(3)  Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence  of  the  Senate 
and  House  of  Representatives  may  be  necessary  (except  on  a  question  of  Ad- 
journment) shall  be  presented  to  the  President  of  the  United  States;  and  before 
the  Same  shall  take  Effect,  shall  be  approved  by  him,  or  being  disapproved  by  him, 
shall  be  repassed  by  two  thirds  of  the  Senate  and  House  of  Representatives,  ac- 
cording to  the  Rules  and  Limitations  prescribed  in  the  Case  of  a  Bill. 

Section  8.  The  Congress  shall  have  Power  (1)  To  lay  and  collect  Taxes, 
Duties,  Imposts  and  Excises,  to  pay  the  Debts  and  provide  for  the  common  De- 
fence and  general  Welfare  of  the  United  States ;  but  all  Duties,  Imposts  and 
Excises  shall  be  uniform  throughout  the  United  States ; 

<2)  To  borrow  money  on  the  credit  of  the  United  States ; 

(3)  To  regulate  Commerce  with  foreign  Nations,  and  among  the  several  States, 
and  with  the  Indian  Tribes ; 

(4)  To  establish  an  uniform  Rule  of  Naturalization,  and  uniform  Laws  on  the 
subject  of  Bankruptcies  throughout  the  United  States; 


506  THE   UNITED   STATES!    A    STUDY   IN   INTERNATIONAL   ORGANIZATION 

(5)  To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign  Coin,  and  fix 
the  Standard  of  Weights  and  Measures ; 

(6>  To  provide  for  the  Punishment  of  counterfeiting  the  Securities  and  current 
Coin  of  the  United  States ; 

(7)  To  establish  Post  Offices  and  post  Roads; 

(S)  To  promote  the  Progress  of  Science  and  useful  Arts,  by  securing  for 
limited  Times  to  Authors  and  Inventors  the  exclusive  Right  to  their  respective 
Writings  and  Discoveries; 

<9)  To  constitute  Tribunals  inferior  to  the  supreme  Court ; 

(10)  To  define  and  punish  Piracies  and  Felonies  committed  on  the  high  Seas, 
and  Offenses  against  the  Law  of  Nations; 

(11)  To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and  make  Rules 
concerning  Captures  on  Land  and  Water ; 

(12>  To  raise  and  support  Armies,  but  no  Appropriation  of  Money  to  that  Use 
shall  be  for  a  longer  Term  than  two  Years ; 

(13)  To  provide  and  maintain  a  Navy; 

<14)  To  make  Rules  for  the  Government  and  Regulation  of  the  land  and  naval 
Forces ; 

(15)  To  provide  for  calling  forth  the  Militia  to  execute  the  Laws  of  the  Union, 
suppress  Insurrections  and  repel  Invasions ; 

(le>  To  provide  for  organizing,  arming,  and  disciplining  the  Militia,  and  for 
governing  such  Part  of  them  as  may  be  employed  in  the  Service  of  the  United 
States,  reserving  to  the  States  respectively,  the  Appointment  of  the  Officers,  and 
the  Authority  of  training  the  Militia  according  to  the  discipline  prescribed  by 
Congress ; 

(17)  To  exercise  exclusive  Legislation  in  all  Cases  whatsoever,  over  such  Dis- 
trict (not  exceeding  ten  Miles  square)  as  may,  by  Cession  of  particular  States, 
and  the  Acceptance  of  Congress,  become  the  seat  of  the  Government  of  the  United 
States,  and  to  exercise  like  Authority  over  all  Places  purchased  by  the  Consent 
of  the  Legislature  of  the  State  in  which  the  Same  shall  be,  for  the  Erection  of 
Forts,  Magazines,  Arsenals,  dock-Yards,  and  other  needful  Buildings;  —  And 

(1S>  To  make  all  Laws  which  shall  be  necessary  and  proper  for  carrying  into 
Execution  the  foregoing  Powers,  and  all  other  Powers  vested  by  this  Constitution 
in  the  Government  of  the  United  States,  or  in  any  Department  or  Officer  thereof. 

Section  9.  (1)  The  Migration  or  Importation  of  such  Persons  as  any  of 
the  States  now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited  by 
the  Congress  prior  to  the  Year  one  thousand  eight  hundred  and  eight,  but  a  tax 
or  duty  may  be  imposed  on  such  Importation,  not  exceeding  ten  dollars  for  each 
Person. 

(2)  The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  suspended, 
unless  when  in  Cases  of  Rebellion  or  Invasion  the  public  Safety  may  require  it. 

(3)  No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 


APPENDIX  507 

*  (4)  No  Capitation,  or  other  direct,  Tax  shall  be  laid,  unless  in  Proportion  to 
the  Census  or  Enumeration  herein  before  directed  to  be  taken. 

(5)  No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  any  State. 

(6)  N0  Preference  shall  be  given  by  any  Regulation  of  Commerce  or  Reve- 
nue to  the  Ports  of  one  State  over  those  of  another :  nor  shall  Vessels  bound  to, 
or  from,  one  State,  be  obliged  to  enter,  clear,  or  pay  Duties  in  another. 

(7)  No  Money  shall  be  drawn  from  the  Treasury,  but  in  Consequence  of 
Appropriations  made  by  Law ;  and  a  regular  Statement  and  Account  of  the  Re- 
ceipts and  Expenditures  of  all  public  Money  shall  be  published  from  time  to  time. 

(S)  No  Title  of  Nobility  shall  be  granted  by  the  United  States;  and  no  Person 
holding  any  Office  of  Profit  or  Trust  under  them,  shall,  without  the  Consent  of 
the  Congress,  accept  of  any  present,  Emolument,  Office,  or  Title,  of  any  kind 
whatever,  from  any  King,  Prince,  or  foreign  State. 

Section  10.  (1)  No  State  shall  enter  into  any  Treaty,  Alliance,  or  Confeder- 
ation; grant  Letters  of  Marque  and  Reprisal;  coin  Money;  emit  Bills  of  Credit; 
make  any  Thing  but  gold  and  silver  Coin  a  Tender  in  Payment  of  Debts ;  pass 
any  Bill  of  Attainder,  ex  post  facto  Law,  or  Law  impairing  the  Obligation  of 
Contracts,  or  grant  any  Title  of  Nobility. 

<2)  No  State  shall,  without  the  Consent  of  the  Congress,  lay  any  Imposts  or 
Duties  on  Imports  or  Exports,  except  what  may  be  absolutely  necessary  for  exe- 
cuting its  inspection  Laws :  and  the  net  Produce  of  all  Duties  and  Imposts,  laid 
by  any  State  on  Imports  or  Exports,  shall  be  for  the  Use  of  the  Treasury  of  the 
United  States ;  and  all  such  Laws  shall  be  subject  to  the  Revision  and  Control 
of  the  Congress. 

<3)  No  State  shall,  without  the  Consent  of  Congress,  lay  any  duty  of  Tonnage, 
keep  Troops,  or  Ships  of  War  in  time  of  Peace,  enter  into  any  Agreement  or 
Compact  with  another  State,  or  with  a  foreign  Power,  or  engage  in  War,  unless 
actually  invaded,  or  in  such  imminent  Danger  as  will  not  admit  of  delay. 

Article  II 

Section  1.  (1)  The  executive  Power  shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall  hold  his  Office  during  the  Term  of  four 
Years,  and,  together  with  the  Vice  President,  chosen  for  the  same  Term,  be 
elected,  as  follows : 

<2)  Each  State  shall  appoint,  in  such  Manner  as  the  Legislature  thereof  may 
direct,  a  Number  of  Electors,  equal  to  the  whole  Number  of  Senators  and  Rep- 
resentatives to  which  the  State  may  be  entitled  in  the  Congress :  but  no  Senator 
or  Representative,  or  Person  holding  an  Office  of  Trust  or  Profit  under  the 
United  States,  shall  be  appointed  an  Elector. 

f  [The  Electors  shall  meet  in  their  respective  States,  and  vote  by  Ballot  for 
two  persons,  of  whom  one  at  least  shall  not  be  an  Inhabitant  of  the  same  State 
with  themselves.  And  they  shall  make  a  List  of  all  the  Persons  voted  for,  and 
of  the  Number  of  Votes  for  each ;  which  List  they  shall  sign  and  certify,  and 

*  See  XVI  Amendment. 

t  This  clause  has  been  superseded  by  the  twelfth  amendment. 


508  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

transmit  sealed  to  the  Seat  of  the  Government  of  the  United  States,  directed  to 
the  President  of  the  Senate.  The  President  of  the  Senate  shall,  in  the  Presence 
of  the  Senate  and  House  of  Representatives,  open  all  the  Certificates,  and  the 
Votes  shall  then  be  counted.  The  Person  having  the  greatest  Number  of  Votes 
shall  be  the  President,  if  such  Number  be  a  Majority  of  the  whole  Number  of 
Electors  appointed ;  and  if  there  be  more  than  one  who  have  such  Majority,  and 
have  an  equal  Number  of  Votes,  then  the  House  of  Representatives  shall  imme- 
diately chuse  by  Ballot  one  of  them  for  President;  and  if  no  Person  have  a 
Majority,  then  from  the  five  highest  on  the  List  the  said  House  shall  in  like 
Manner  chuse  the  President.  But  in  chusing  the  President,  the  Votes  shall  be 
taken  by  States,  the  Representation  from  each  State  having  one  Vote ;  A  quorum 
for  this  Purpose  shall  consist  of  a  Member  or  Members  from  two  thirds  of  the 
States,  and  a  Majority  of  all  the  States  shall  be  necessary  to  a  Choice.  In  every 
Case,  after  the  Choice  of  the  President,  the  Person  having  the  greatest  Number 
of  Votes  of  the  Electors  shall  be  the  Vice  President.  But  if  there  should  re- 
main two  or  more  who  have  equal  Votes,  the  Senate  shall  chuse  from  them  by 
Ballot  the  Vice  President.] 

(3)  The  Congress  may  determine  the  Time  of  chusing  the  Electors,  and  the 
Day  on  which  they  shall  give  their  Votes ;  which  Day  shall  be  the  same  through- 
out the  United  States. 

(4)  No  Person  except  a  natural  born  Citizen,  or  a  Citizen  of  the  United  States, 
at  the  time  of  the  Adoption  of  this  Constitution,  shall  be  eligible  to  the  Office 
of  President ;  neither  shall  any  Person  be  eligible  to  that  Office  who  shall  not 
have  attained  to  the  Age  of  thirty  five  Years,  and  been  fourteen  Years  a  Resi- 
dent within  the  United  States. 

<6)  In  Case  of  the  Removal  of  the  President  from  Office,  or  of  his  Death, 
Resignation,  or  Inability  to  discharge  the  Powers  and  Duties  of  the  said  Office, 
the  Same  shall  devolve  on  the  Vice  President,  and  the  Congress  may  by  Law 
provide  for  the  Case  of  Removal,  Death,  Resignation  or  Inability,  both  of  the 
President  and  Vice  President,  declaring  what  Officer  shall  then  act  as  President, 
and  such  Officer  shall  act  accordingly,  until  the  Disability  be  removed,  or  a 
President  shall  be  elected. 

(6)  The  President  shall,  at  stated  Times,  receive  for  his  Services,  a  Compen- 
sation, which  shall  neither  be  encreased  nor  diminished  during  the  Period  for 
which  he  shall  have  been  elected,  and  he  shall  not  receive  within  that  Period  any 
other  Emolument  from  the  United  States,  or  any  of  them. 

<7)  Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take  the  following 
Oath  or  Affirmation : — "I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
execute  the  Office  of  President  of  the  United  States,  and  will  to  the  best  of  my 
Ability,  preserve,  protect  and  defend  the  Constitution  of  the  United  States." 

Section  2.  m  The  President  shall  be  Commander  in  Chief  of  the  Army 
and  Navy  of  the  United  States,  and  of  the  Militia  of  the  several  States,  when 
called  into  the  actual  Service  of  the  United  States ;  he  may  require  the  Opinion, 
in  writing,  of  the  principal  Officer  in  each  of  the  executive  Departments,  upon 


ArPENDix  509 

any  Subject  relating  to  the  Duties  of  their  respective  Offices,  and  he  shall  have 
Power  to  grant  Reprieves  and  Pardons  for  Offences  against  the  United  States, 
except  in  Cases  of  Impeachment. 

(2)  He  shall  have  Power,  by  and  with  the  Advice  and  Consent  of  the  Senate, 
to  make  Treaties,  provided  two  thirds  of  the  Senators  present  concur ;  and  he 
shall  nominate,  and  by  and  with  the  Advice  and  Consent  of  the  Senate,  shall 
appoint  Ambassadors,  other  public  Ministers  and  Consuls,  Judges  of  the  su- 
preme Court,  and  all  other  Officers  of  the  United  States,  whose  Appointments 
are  not  herein  otherwise  provided  for,  and  which  shall  be  established  by  Law : 
but  the  Congress  may  by  Law  vest  the  Appointment  of  such  inferior  Officers, 
as  they  think  proper,  in  the  President  alone,  in  the  Courts  of  Law,  or  in  the 
Heads  of  Departments. 

(3)  The  President  shall  have  Power  to  fill  up  all  Vacancies  that  may  happen 
during  the  Recess  of  the  Senate,  by  granting  Commissions  which  shall  expire  at 
the  End  of  their  next  Session. 

Section  3.  He  shall  from  time  to  time  give  to  the  Congress  Information  of 
the  State  of  the  Union,  and  recommend  to  their  Consideration  such  Measures  as 
he  shall  judge  necessary  and  expedient;  he  may,  on  extraordinary  Occasions, 
convene  both  Houses,  or  either  of  them,  and  in  Case  of  Disagreement  between 
them,  with  Respect  to  the  Time  of  Adjournment,  he  may  adjourn  them  to  such 
Time  as  he  shall  think  proper ;  he  shall  receive  Ambassadors  and  other  public 
Ministers;  he  shall  take  Care  that  the  Laws  be  faithfully  executed,  and  shall 
Commission  all  the  Officers  of  the  United  States. 

Section  4.  The  President,  Vice  President  and  all  civil  Officers  of  the 
United  States,  shall  be  removed  from  Office  on  Impeachment  for,  and  Conviction 
of,  Treason,  Bribery,  or  other  high  Crimes  and  Misdemeanors. 

Article  III 

Section  1.  The  judicial  Power  of  the  United  States,  shall  be  vested  in  one 
supreme  Court,  and  in  such  inferior  Courts  as  the  Congress  may  from  time  to 
time  ordain  and  establish.  The  Judges,  both  of  the  supreme  and  inferior  Courts, 
shall  hold  their  Offices  during  good  Behaviour,  and  shall,  at  stated  Times,  re- 
ceive for  their  Services,  a  Compensation,  which  shall  not  be  diminished  during 
their  Continuance  in  Office. 

Section  2.  (1)  The  judicial  Power  shall  extend  to  all  Cases,  in  Law  and 
Equity,  arising  under  this  Constitution,  the  Laws  of  the  United  States,  and 
Treaties  made,  or  which  shall  be  made,  under  their  Authority;  —  to  all  Cases 
affecting  Ambassadors,  or  other  public  Ministers  and  Consuls ;  —  to  all  Cases 
of  admiralty  and  maritime  Jurisdiction;  —  to  Controversies  to  which  the  United 
States  shall  be  a  Party;  —  to  Controversies  between  two  or  more  States;  —  be- 
tween a  State  and  Citizens  of  another  State;  —  between  Citizens  of  different 
States;  —  between  Citizens  of  the  same  State  claiming  Lands  under  Grants  of 
different  States,  and  between  a  State,  or  the  Citizens  thereof,  and  foreign  States, 
Citizens  or  Subjects. 


510  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

(:1  In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and  Consuls, 
and  those  in  which  a  State  shall  be  Party,  the  supreme  Court  shall  have  original 
Jurisdiction.  In  all  the  other  Cases  before  mentioned,  the  supreme  Court  shall 
have  appellate  Jurisdiction,  both  as  to  Law  and  Fact,  with  such  Exceptions,  and 
under  such  Regulations  as  the  Congress  shall  make. 

(3)  The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment,  shall  be  by  Jury; 
and  such  Trial  shall  be  held  in  the  State  where  the  said  Crimes  shall  have  been 
committed ;  but  when  not  committed  within  any  State,  the  Trial  shall  be  at  such 
Place  or  Places  as  the  Congress  may  by  Law  have  directed. 

Section  3.  (1)  Treason  against  the  United  States,  shall  consist  only  in  levy- 
ing War  against  them,  or  in  adhering  to  their  Enemies,  giving  them  Aid  and 
Comfort.  No  Person  shall  be  convicted  of  Treason  unless  on  the  Testimony  of 
two  Witnesses  to  the  same  overt  Act,  or  on  Confession  in  open  Court. 

(2)  The  Congress  shall  have  Power  to  declare  the  Punishment  of  Treason,  but 
no  Attainder  of  Treason  shall  work  Corruption  of  Blood,  or  Forfeiture  except 
during  the  Life  of  the  Person  attainted. 

Article  IV 

Section  1.  Full  Faith  and  Credit  shall  be  given  in  each  State  to  the  public 
Acts,  Records,  and  judicial  Proceedings  of  every  other  State.  And  the  Con- 
gress may  by  general  Laws  prescribe  the  Manner  in  which  such  Acts,  Records 
and  Proceedings  shall  be  proved,  and  the  Effect  thereof. 

Section  2.  (1)  The  Citizens  of  each  State  shall  be  entitled  to  all  Privileges 
and  Immunities  of  Citizens  in  the  several  States. 

<2)  A  Person  charged  in  any  State  with  Treason,  Felony,  or  other  Crime,  who 
shall  flee  from  Justice,  and  be  found  in  another  State,  shall  on  Demand  of  the 
executive  Authority  of  the  State  from  which  he  fled,  be  delivered  up,  to  be  re- 
moved to  the  State  having  jurisdiction  of  the  Crime. 

(3)  No  Person  held  to  Service  or  Labour  in  one  State,  under  the  Laws  thereof, 
escaping  into  another,  shall,  in  Consequence  of  any  Law  or  Regulation  therein, 
be  discharged  from  such  Service  or  Labour,  but  shall  be  delivered  up  on  Claim 
of  the  Party  to  whom  such  Service  or  Labour  may  be  due. 

Section  3.  U)  New  States  may  be  admitted  by  the  Congress  into  this  Union ; 
but  no  new  State  shall  be  formed  or  erected  within  the  Jurisdiction  of  any  other 
State ;  nor  any  State  be  formed  by  the  Junction  of  two  or  more  States,  or  Parts 
of  States,  without  the  Consent  of  the  Legislatures  of  the  States  concerned  as  well 
as  of  the  Congress. 

(2)  The  Congress  shall  have  Power  to  dispose  of  and  make  all  needful  Rules 
and  Regulations  respecting  the  Territory  or  other  Property  belonging  to  the 
United  States ;  and  nothing  in  this  Constitution  shall  be  so  construed  as  to  Preju- 
dice any  Claims  of  the  United  States,  or  of  any  particular  State. 

Section  4.  The  United  States  shall  guarantee  to  every  State  in  this  Union 
a  Republican  Form  of  Government,  and  shall  protect  each  of  them  against  Inva- 


APPENDIX  511 

sion;  and  on  Application  of  the  Legislature,  or  of  the  Executive   (when  the 
Legislature  cannot  be  convened)  against  domestic  Violence. 

Article  V 

The  Congress,  whenever  two-thirds  of  both  Houses  shall  deem  it  necessary, 
shall  propose  Amendments  to  this  Constitution,  or,  on  the  Application  of  the 
Legislatures  of  two  thirds  of  the  several  States,  shall  call  a  Convention  for  pro- 
posing Amendments,  which,  in  either  Case,  shall  be  valid  to  all  Intents  and  Pur- 
poses, as  part  of  this  Constitution,  when  ratified  by  the  Legislatures  of  three 
fourths  of  the  several  States,  or  by  Conventions  in  three  fourths  thereof,  as  the 
one  or  the  other  Mode  of  Ratification  may  be  proposed  by  the  Congress ;  Pro- 
vided that  no  Amendment  which  may  be  made  prior  to  the  Year  One  thousand 
eight  hundred  and  eight  shall  in  any  Manner  affect  the  first  and  fourth  Clauses 
in  the  Ninth  Section  of  the  first  Article ;  and  that  no  State,  without  its  Consent, 
shall  be  deprived  of  its  equal  Suffrage  in  the  Senate. 

Article  VI 

(1)  All  Debts  contracted  and  Engagements  entered  into,  before  the  Adoption 
of  this  Constitution,  shall  be  as  valid  against  the  United  States  under  this  Con- 
stitution, as  under  the  Confederation. 

(2>  This  Constitution,  and  the  Laws  of  the  United  States  which  shall  be  made 
in  Pursuance  thereof ;  and  all  Treaties  made,  or  which  shall  be  made,  under  the 
Authority  of  the  United  States,  shall  be  the  supreme  Law  of  the  Land;  and  the 
Judges  in  every  State  shall  be  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwithstanding. 

<3)  The  Senators  and  Representatives  before  mentioned,  and  the  Members  of 
the  several  State  Legislatures,  and  all  executive  and  judicial  Officers,  both  of  the 
United  States  and  of  the  several  States,  shall  be  bound  by  Oath  or  Affirmation, 
to  support  this  Constitution ;  but  no  religious  Test  shall  ever  be  required  as  a 
Qualification  to  any  Office  or  public  Trust  under  the  United  States. 

Article  VII 

The  Ratification  of  the  Conventions  of  nine  States,  shall  be  sufficient  for  the 
Establishment  of  this  Constitution  between  the  States  so  ratifying  the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of  the  States  present  the 
Seventeenth  Day  of  September  in  the  Year  of  our  Lord  one  thousand  seven 
hundred  and  Eighty  seven,  and  of  the  Independence  of  the  United  States  of 
America  the  Twelfth.  IN  WITNESS  whereof  We  have  hereunto  subscribed 
our  Names. 

G0.:  WASHINGTON 
Presidt  and  deputy  from  Virginia 


512  THE    UNITED   STATES!    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 


John  Langdon 


New  Hampshire. 

Nicholas  Gilman 


Nathaniel  Gorham 


Massachusetts. 

Rufus  King 


Wm.  Saml.  Johnson 


Connecticut. 

Roger  Sherman 


Alexander  Hamilton 


New  York. 


Wil:  Livingston 
David  Brearley 


New  Jersey. 

Wm.  Patterson 
Jona:  Dayton 


B.  Franklin 
Robt.  Morris 
Thos.  Fitzsimons 
James  Wilson 


Pennsylvania. 

Thomas  Mifflin 
Geo.  Clymer 
Jared  Ingersoll 
Gouv  Morris 


Geo:  Read 
John  Dickinson 
Jaco:  Broom 


James  McHenry 
Danl.  Carroll 


Delaware. 

Gunning  Bedford  Jun 
Richard  Bassett 


Maryland. 

Dan  of   St  Thos  Jenifer 


John  Blair  — 


Wm.  Blount 

Hu  Williamson 


Virginia. 

James  Madison  Jr. 

North  Carolina. 

RlCHD   DOBBS    SPAIGHT 


APPENDIX 


513 


j.  rutledge 
Charles  Pinckney 


South  Carolina. 

Charles  Cotesworth  Pinckney 
Pierce  Butler 


William  Few 


Georgia. 

Abr  Baldwin 


Attest 


WILLIAM  JACKSON  Secretary 


B.    AN  ORDINANCE  FOR  THE  GOVERNMENT  OF  THE  TERRITORY 

OF  THE  UNITED  STATES  NORTHWEST 

OF  THE  RIVER  OHIO  1 

Section  1.  Be  it  ordained  by  the  United  States  in  Congress  assembled, 
That  the  said  territory,  for  the  purpose  of  temporary  government,  be  one  district, 
subject,  however,  to  be  divided  into  two  districts,  as  future  circumstances  may, 
in  the  opinion  bf  Congress,  make  it  expedient. 

Sec.  2.  Be  it  ordained  by  the  authority  aforesaid,  That  the  estates  both  of 
resident  and  non-resident  proprietors  in  the  said  territory,  dying  intestate,  shall 
descend  to.  and  be  distributed  among,  their  children  and  descendants  of  a  deceased 
child  in  equal  parts,  the  descendants  of  a  deceased  child  or  grandchild  to  take 
the  share  of  their  deceased  parent  in  equal  parts  among  them ;  and  where  there 
shall  be  no  children  or  descendants,  then  in  equal  parts  to  the  next  of  kin,  in 
equal  degree ;  and  among  collaterals,  the  children  of  a  deceased  brother  or  sister 
of  the  intestate  shall  have,  in  equal  parts  among  them,  their  deceased  parent's 
share;  and  there  shall,  in  no  case,  be  a  distinction  between  kindred  of  the  whole 
and  half  blood ;  saving  in  all  cases  to  the  widow  of  the  intestate,  her  third  part 
of  the  real  estate  for  life,  and  one-third  part  of  the  personal  estate;  and  this 
law  relative  to  descents  and  dower,  shall  remain  in  full  force  until  altered  by  the 
legislature  of  the  district.  And  until  the  governor  and  judges  shall  adopt  laws 
as  hereinafter  mentioned,  estates  in  the  said  territory  may  be  devised  or  be- 
queathed by  wills  in  writing,  signed  and  sealed  by  him  or  her  in  whom  the  estate 
may  be  (being  of  full  age),  and  attested  by  three  witnesses;  and  real  estates 
may  be  conveyed  by  lease  and  release,  or  bargain  and  sale,  signed,  sealed,  and 
delivered  by  the  person,  being  of  full  age,  in  whom  the  estate  may  be,  and  at- 
tested by  two  witnesses,  provided  such  wills  be  duly  proved,  and  such  conveyances 
be  acknowledged,  or  the  execution  thereof  duly  proved,  and  be  recorded  within 
one  year  after  proper  magistrates,  courts,  and  registers,  shall  be  appointed  for 
that  purpose ;  and  personal  property  may  be  transferred  by  delivery,  saving, 
however,  to  the  French  and  Canadian  inhabitants,  and  other  settlers  of  the  Kas- 
kaskies,  Saint  Vincents,  and  the  neighboring  villages,  who  have  heretofore  pro- 
fessed themselves  citizens  of  Virginia,  their  laws  and  customs  now  in  force  among 
them,  relative  to  the  descent  and  conveyance  of  property. 

Sec.  3.  Be  it  ordained  by  the  authority  aforesaid,  That  there  shall  be 
appointed,  from  time  to  time,  by  Congress,  a  governor,  whose  commission  shall 
continue  in  force  for  the  term  of  three  years,  unless  sooner  revoked  by  Congress; 
he  shall  reside  in  the  district,  and  have  a  freehold  estate  therein,  in  one  thousand 
acres  of  land,  while  in  the  exercise  of  his  office. 

Sec.  4.     There  shall  be  appointed  from  time  to  time,  by  Congress,  a  secre- 

i  Revised  Statutes  of  the  United  States,  2d  ed.,  1878,  pp.  13-16. 

5i4 


APPENDIX  515 

tary,  whose  commission  shall  continue  in  force  for  four  years,  unless  sooner 
revoked ;  he  shall  reside  in  the  district,  and  have  a  freehold  estate  therein,  in  five 
hundred  acres  of  land,  while  in  the  exercise  of  his  office.  It  shall  be  his  duty 
to  keep  and  preserve  the  acts  and  laws  passed  by  the  legislature,  and  the  public 
records  of  the  district,  and  the  proceedings  of  the  governor  in  his  executive 
department,  and  transmit  authentic  copies  of  such  acts  and  proceedings  every  six 
months  to  the  Secretary  of  Congress.  There  shall  also  be  appointed  a  court, 
to  consist  of  three  judges,  any  two  of  whom  to  form  a  court,  who  shall  have  a 
common-law  jurisdiction,  and  reside  in  the  district,  and  have  each  therein  a 
freehold  estate,  in  five  hundred  acres  of  land,  while  in  the  exercise  of  their 
offices ;  and  their  commissions  shall  continue  in  force  during  good  behavior. 

Sec.  5.  The  governor  and  judges,  or  a  majority  of  them,  shall  adopt  and 
publish  in  the  district  such  laws  of  the  original  States,  criminal  and  civil,  as  may 
be  necessary,  and  best  suited  to  the  circumstances  of  the  district,  and  report 
them  to  Congress  from  time  to  time,  which  laws  shall  be  in  force  in  the  district 
until  the  organization  of  the  general  assembly  therein,  unless  disapproved  of  by 
Congress ;  but  afterwards  the  legislature  shall  have  authority  to  alter  them  as 
they  shall  think  fit. 

Sec.  6.  The  governor,  for  the  time  being,  shall  be  commander-in-chief  of 
the  militia,  appoint  and  commission  all  officers  in  the  same  below  the  rank  of 
general  officers ;  all  general  officers  shall  be  appointed  and  commissioned  by 
Congress. 

Sec.  7.  Previous  to  the  organization  of  the  general  assembly  the  governor 
shall  appoint  such  magistrates,  and  other  civil  officers,  in  each  county  or  township, 
as  he  shall  find  necessary  for  the  preservation  of  the  peace  and  good  order  in 
the  same.  After  the  general  assembly  shall  be  organized  the  powers  and  duties 
of  magistrates  and  other  civil  officers  shall  be  regulated  and  defined  by  the  said 
assembly ;  but  all  magistrates  and  other  civil  officers,  not  herein  otherwise  directed, 
shall,  during  the  continuance  of  this  temporary  government,  be  appointed  by  the 
governor. 

Sec.  8.  For  the  prevention  of  crimes  and  injuries,  the  laws  to  be  adopted 
or  made  shall  have  force  in  all  parts  of  the  district,  and  for  the  execution  of 
process,  criminal  and  civil,  the  governor  shall  make  proper  divisions  thereof ; 
and  he  shall  proceed,  from  time  to  time,  as  circumstances  may  require,  to  lay 
out  the  parts  of  the  district  in  which  the  Indian  titles  shall  have  been  extinguished, 
into  counties  arid  townships,  subject,  however,  to  such  alterations  as  may  there- 
after be  made  by  the  legislature. 

Sec.  9.  So  soon. as  there  shall  be  five  thousand  free  male  inhabitants,  of  full 
age,  in  the  district,  upon  giving  proof  thereof  to  the  governor,  they  shall  receive 
authority,  with  time  and  place,  to  elect  representatives  from  their  counties  or 
townships,  to  represent  them  in  the  general  assembly:  Provided,  That  for  every 
five  hundred  free  male  inhabitants  there  shall  be  one  representative,  and  so  on, 
progressively,  with  the  number  of  free  male  inhabitants,  shall  the  right  of  repre- 
sentation increase,  until  the  number  of  representatives  shall  amount  to  twenty-five; 


\ 


516  THE    UNITED   STATES."    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

after  which  the  number  and  proportion  of  representatives  shall  be  regulated  by 
the  legislature:  Proznded,  That  no  person  be  eligible  or  qualified  to  act  as  a 
representative,  unless  he  shall  have  been  a  citizen  of  one  of  the  United  States 
three  years,  and  be  a  resident  in  the  district,  or  unless  he  shall  have  resided  in  the 
district  three  years ;  and,  in  either  case,  shall  likewise  hold  in  his  own  right,  in 
fee-simple,  two  hundred  acres  of  land  within  the  same :  Provided  also,  That  a 
freehold  in  fifty  acres  of  land  in  the  district,  having  been  a  citizen  of  one  of  the 
States,  and  being  resident  in  the  district,  or  the  like  freehold  and  two  years' 
residence  in  the  district,  shall  be  necessary  to  qualify  a  man  as  an  elector  of  a 
representative. 

Sec.  10.  The  representatives  thus  elected  shall  serve  for  the  term  of  two 
years;  and  in  case  of  the  death  of  a  representative,  or  removal  from  office,  the 
governor  shall  issue  a  writ  to  the  county  or  township,  for  which  he  was  a  member, 
to  elect  another  in  his  stead,  to  serve  for  the  residue  of  the  term. 

Sec.  11.  The  general  assembly,  or  legislature,  shall  consist  of  the  governor, 
legislative  council,  and  a  house  of  representatives.  The  legislative  council  shall 
consist  of  five  members,  to  continue  in  office  five  years,  unless  sooner  removed 
by  Congress ;  any  three  of  whom  to  be  a  quorum ;  and  the  members  of  the  council 
shall  be  nominated  and  appointed  in  the  following  manner,  to  wit:  As  soon  as 
representatives  shall  be  elected  the  governor  shall  appoint  a  time  and  place  for 
them  to  meet  together,  and  when  met  they  shall  nominate  ten  persons,  resident 
in  the  district,  and  each  possessed  of  a  freehold  in  five  hundred  acres  of  land, 
and  return  their  names  to  Congress,  five  of  whom  Congress  shall  appoint  and 
commission  to  serve  as  aforesaid:  and  whenever  a  vacancy  shall  happen  in  the 
council,  by  death  or  removal  from  office,  the  house  of  representatives  shall 
nominate  two  persons  qualified  as  aforesaid,  for  each  vacancy,  and  return  their 
names  to  Congress,  one  of  whom  Congress  shall  appoint  and  commission  for  the 
residue  of  the  term ;  and  every  five  years,  four  months  at  least  before  the  expira- 
tion of  the  time  of  service  of  the  members  of  the  council,  the  said  house  shall 
nominate  ten  persons,  qualified  as  aforesaid,  and  return  their  names  to  Congress, 
five  of  whom  Congress  shall  appoint  and  commission  to  serve  as  members  of  the 
council  five  years,  unless  sooner  removed.  And  the  governor,  legislative  council, 
and  house  of  representatives  shall  have  authority  to  make  laws  in  all  cases  for 
the  good  government  of  the  district,  not  repugnant  to  the  principles  and  articles 
in  this  ordinance  established  and  declared.  And  all  bills,  having  passed  by  a 
majority  in  the  house,  and  by  a  majority  in  the  council,  shall  be  referred  to  the 
governor  for  his  assent;  but  no  bill,  or  legislative  act  whatever,  shall  be  of  any 
force  without  his  assent.  The  governor  shall  have  power  to  convene,  prorogue, 
and  dissolve  the  general  assembly  when,  in  his  opinion,  it  shall  be  expedient. 

Sec.  12.  The  governor,  judges,  legislative  council,  secretary,  and  such  other 
officers  as  Congress  shall  appoint  in  the  district,  shall  take  an  oath  or  affirmation 
of  fidelitv.  and  of  office;  the  governor  before  the  President  of  Congress,  and  all 
other  officers  before  the  governor.  As  soon  as  a  legislature  shall  be  formed  in 
the  district,  the  council  and  house  assembled,  in  one  room,  shall  have  authority,  by 


APPENDIX  517 

joint  ballot,  to  elect  a  delegate  to  Congress,  who  shall  have  a  seat  in  Congress,  with 
a  right  of  debating,  but  not  of  voting,  during  this  temporary  government. 

Sec.  13.  And  for  extending  the  fundamental  principles  of  civil  and  religious 
liberty,  which  form  the  basis  whereon  these  republics,  their  laws  and  constitutions, 
are  erected ;  to  fix  and  establish  those  principles  as  the  basis  of  all  laws,  constitu- 
tions, and  governments,  which  forever  hereafter  shall  be  formed  in  the  said 
territory;  to  provide,  also,  for  the  establishment  of  States,  and  permanent  govern- 
ment therein,  and  for  their  admission  to  a  share  in  the  Federal  councils  on  an 
equal  footing  with  the  original  States,  at  as  early  periods  as  may  be  consistent  with 
the  general  interest. 

Sec.  14.  It  is  hereby  ordained  and  declared,  by  the  authority  aforesaid, 
that  the  following  articles  shall  be  considered  as  articles  of  compact,  between 
the  original  States  and  the  people  and  States  in  the  said  territory,  and  forever 
remain  unalterable,  unless  by  common  consent,  to  wit : 

ARTICLE  I 

No  person,  demeaning  himself  in  a  peaceable  and  orderly  manner,  shall  ever 
be  molested  on  account  of  his  mode  of  worship,  or  religious  sentiments,  in  the 
said  territories. 

ARTICLE  II 

The  inhabitants  of  the  said  territory  shall  always  be  entitled  to  the  benefits  of 
the  writs  of  habeas  corpus,  and  of  the  trial  by  jury;  of  a  proportionate  repre- 
sentation of  the  people  in  the  legislature,  and  of  judicial  proceedings  according  to 
the  course  of  the  common  law.  All  persons  shall  be  bailable,  unless  for  capital 
offenses,  where  the  proof  shall  be  evident,  or  the  presumption  great.  All  fines 
shall  be  moderate;  and  no  cruel  or  unusual  punishment  shall  be  inflicted.  No 
man  shall  be  deprived  of  his  liberty  or  property,  but  by  the  judgment  of  his  peers, 
or  the  law  of  the  land,  and  should  the  public  exigencies  make  it  necessary,  for  the 
common  preservation,  to  take  any  person's  property,  or  to  demand  his  particular 
services,  full  compensation  shall  be  made  for  the  same.  And,  in  the  just  preserva- 
tion of  rights  and  property,  it  is  understood  and  declared,  that  no  law  ought 
ever  to  be  made  or  have  force  in  the  said  territory,  that  shall,  in  any  manner 
whatever,  interfere  with  or  affect  private  contracts,  or  engagements,  bona  Me, 
and  without  fraud  previously  formed. 

ARTICLE  III 

Religion,  morality,  and  knowledge  being  necessary  to  good  government  and  the 
happiness  of  mankind,  schools  and  the  means  of  education  shall  forever  he 
encouraged.  The  utmost  good  faith  shall  always  be  observed  towards  the 
Indians ;  their  lands  and  property  shall  never  be  taken  from  them  without  their 
consent ;  and  in  their  property,  rights,  and  liberty  they  never  shall  be  invaded  or 
disturbed,   unless  in   just   and  lawful   wars   authorized   by   Congress;   but   laws 


518  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

founded  in  justice  and  humanity,  shall,  from  time  to  time,  be  made,  for  preventing 
wrongs  being  done  to  them,  and  for  preserving  peace  and  friendship  with  them. 

ARTICLE  IV 

The  said  territory,  and  the  States  which  may  be  formed  therein,  shall  forever 
remain  a  part  of  this  confederacy  of  the  United  States  of  America,  subject  to 
the  Articles  of  Confederation,  and  to  such  alterations  therein  as  shall  be  con- 
stitutionally made ;  and  to  all  the  acts  and  ordinances  of  the  United  States  in 
Congress  assembled,  conformable  thereto.  The  inhabitants  and  settlers  in  the 
said  territory  shall  be  subject  to  pay  a  part  of  the  Federal  debts,  contracted,  or 
to  be  contracted,  and  a  proportional  part  of  the  expenses  of  government  to  be 
apportioned  on  them  by  Congress,  according  to  the  same  common  rule  and 
measure  by  which  apportionments  thereof  shall  be  made  on  the  other  States ; 
and  the  taxes  for  paying  their  proportion  shall  be  laid  and  levied  by  the  authority 
and  direction  of  the  legislatures  of  the  district,  or  districts,  or  new  States,  as  in 
the  original  States,  within  the  time  agreed  upon  by  the  United  States  in  Congress 
assembled.  The  legislatures  of  those  districts,  or  new  States,  shall  never  interfere 
with  the  primary  disposal  of  the  soil  by  the  United  States  in  Congress  assembled, 
nor  with  any  regulations  Congress  may  find  necessary  for  securing  the  title  in 
such  soil  to  the  bona  fide  purchasers.  No  tax  shall  be  imposed  on  lands  the 
property  of  the  United  States ;  and  in  no  case  shall  non-resident  proprietors  be 
taxed  higher  than  residents.  The  navigable  waters  leading  into  the  Mississippi 
and  Saint  Lawrence,  and  the  carrying  places  between  the  same,  shall  be  common 
highways,  and  forever  free,  as  well  to  the  inhabitants  of  the  said  territory  as  to 
the  citizens  of  the  LTiited  States,  and  those  of  any  other  States  that  may  be 
admitted  into  the  confederacy,  without  any  tax,  impost,  or  duty  therefor. 

ARTICLE  V 

There  shall  be  formed  in  the  said  territory  not  less  than  three^  nor  more  than 
five  States ;  and  the  boundaries  of  the  States,  as  soon  as  Virginia  shall  alter  her 
act  of  cession  and  consent  to  the  same,  shall  become  fixed  and  established  as 
follows,  to  wit :  The  western  State,  in  the  said  territory,  shall  be  bounded  by  the 
Mississippi,  the  Ohio,  and  the  Wabash  Rivers;  a  direct  line  drawn  from  the 
Wabash  and  Post  Vincents,  due  north,  to  the  territorial  line  between  the  United 
States  and  Canada ;  and  by  the  said  territorial  line  to  the  Lake  of  the  Woods 
and  Mississippi.  The  middle  State  shall  be  bounded  by  the  said  direct  line,  the 
Wabash  from  Post  Vincents  to  the  Ohio,  by  the  Ohio,  by  a  direct  line  drawn 
due  north  from  the  mouth  of  the  Great  Miami  to  the  said  territorial  line,  and 
by  the  said  territorial  line.  The  eastern  State  shall  be  bounded  by  the  last-men- 
tioned direct  line,  the  Ohio,  Pennsylvania,  and  the  said  territorial  line :  Provided, 
hozi-evcr.  And  it  is  further  understood  and  declared,  that  the  boundaries  of  these 
three  States  shall  be  subject  so  far  to  be  altered,  that,  if  Congress  shall  hereafter 
find  it  expedient,  they  shall  have  authority  to  form  one  or  two  States  in  that  part 


APPENDIX  519 

of  the  said  territory  which  lies  north  of  an  east  and  west  line  drawn  through 
the  southerly  bend  or  extreme  of  Lake  Michigan.  And  whenever  any  of  the 
said  States  shall  have  sixty  thousand  free  inhabitants  therein,  such  State  shall  be 
admitted,  by  its  delegates,  into  the  Congress  of  the  United  States,  on  an  equal 
footing  with  the  original  States,  in  all  respects  whatever;  and  shall  be  at  liberty 
to  form  a  permanent  constitution  and  State  government :  Provided,  The  con- 
stitution and  government,  so  to  be  formed,  shall  be  republican,  and  in  conformity 
to  the  principles  contained  in  these  articles,  and  so  far  as  it  can  be  consistent 
with  the  general  interest  of  the  confederacy,  such  admission  shall  be  allowed  at 
an  earlier  period,  and  when  there  may  be  a  less  number  of  free  inhabitants  in  the 
State  than  sixty  thousand. 

ARTICLE  VI 

There  shall  be  neither  slavery  nor  involuntary  servitude  in  the  said  territory, 
otherwise  than  in  the  punishment  of  crimes,  whereof  the  party  shall  have  been 
duly  convicted :  Provided  always,  That  any  person  escaping  into  the  same,  from 
whom  labor  or  service  is  lawfully  claimed  in  any  one  of  the  original  States,  such 
fugitive  may  be  lawfully  reclaimed,  and  conveyed  to  the  person  claiming  his  or 
her  labor  or  service  as  aforesaid. 

Be  it  ordained  by  the  authority  aforesaid,  That  the  resolutions  of  the  23d 
of  April,  1784,  relative  to  the  subject  of  this  ordinance,  be,  and  the  same  are 
hereby,  repealed,  and  declared  null  and  void. 

Done  by  the  United  States,  in  Congress  assembled,  the  13th  day  of  July,  in 
the  year  of  our  Lord  1787,  and  of  their  sovereignty  and  independence  the  twelfth. 


C.     DOCUMENTS  FROM  WHICH  THE  CONSTITUTION  WAS 

EVOLVED. 

I.    TEXT   OF   MR.   RANDOLPH'S   RESOLUTIONS,   PRESENTED   TO 
THE  CONVENTION  MAY  29,   1787.1 

1.  Resolved  that  the  articles  of  Confederation  ought  to  be  so  corrected  &  en- 
larged as  to  accomplish  the  objects  proposed  by  their  institution;  namely,  "com- 
mon defence,  security  of  liberty  and  general  welfare." 

2.  Resd.  therefore  that  the  rights  of  suffrage  in  the  National  Legislature  ought 
to  be  proportioned  to  the  Quotas  of  contribution,  or  to  the  number  of  free  in- 
habitants, as  the  one  or  the  other  rule  may  seem  best  in  different  cases. 

3.  Resd.  that  the  National  Legislature  ought  to  consist  of  two  branches. 

4.  Resd.  that  the  members  of  the  first  branch  of  the  National  Legislature 
ought  to  be  elected  by  the  people  of  the  several  States  every  for  the  term 
of  ;  to  be  of  the  age  of  years  at  least,  to  receive  liberal  stipends  by 
which  they  may  be  compensated  for  the  devotion  of  their  time  to  public  serv- 
ice; to  be  ineligible  to  any  office  established  by  a  particular  State,  or  under 
the  authority  of  the  United  States,  except  those  peculiarly  belonging  to  the  func- 
tions of  the  first  branch,  during  the  term  of  service,  and  for  the  space  of 
after  its  expiration ;  to  be  incapable  of  re-election  for  the  space  of  after 
the  expiration  of  their  term  of  service,  and  to  be  subject  to  recall. 

5.  Resold  that  the  members  of  the  second  branch  of  the  National  Legislature 
ought  to  be  elected  by  those  of  the  first,  out  of  a  proper  number  of  persons  nomi- 
nated by  the  individual  Legislatures,  to  be  of  the  age  of  years  at  least ;  to 
hold  their  offices  for  a  term  sufficient  to  ensure  their  independency,  to  receive 
liberal  stipends,  by  which  they  may  be  compensated  for  the  devotion  of  their  time 
to  the  public  service :  and  to  be  ineligible  to  any  office  established  by  a  particular 
State,  or  under  the  authority  of  the  United  States,  except  those  peculiarly  be- 
longing to  the  functions  of  the  second  branch,  during  the  term  of  service,  and 
for  the  space  of                  after  the  expiration  thereof. 

6.  Resolved  that  each  branch  ought  to  possess  the  right  of  originating  Acts ; 
that  the  National  Legislature  ought  to  be  empowered  to  enjoy  the  Legislative 
Rights  vested  in  Congress  by  the  Confederation  &  moreover  to  legislate  in  all 
cases  to  which  the  separate  States  are  incompetent,  or  in  which  the  harmony  of 
the  L^nited  States  may  be  interrupted  by  the  exercise  of  individual  Legislation  : 
to  negative  all  laws  passed  by  the  several  States,  contravening  in  the  opinion  of 
the  National  Legislature  the  articles  of  Union;  and  to  call  forth  the  force  of 
the  Union  agst.  any  member  of  the  Union  failing  to  fulfill  its  duty  under  the 
articles  thereof. 

1  Documentary  History  of  the  Constitution,  Vol.  iii.  pp.  17-20. 

520 


APPENDIX  521 

7.  Resd.  that  a  National  Executive  be  instituted;  to  be  chosen  by  the  Na- 
tional Legislature  for  the  term  of  years,  to  receive  punctually  at  stated 
times,  a  fixed  compensation  for  the  services  rendered,  in  which  no  increase  or 
diminution  shall  be  made  so  as  to  affect  the  Magistracy,  existing  at  the  time  of 
increase  or  diminution,  and  to  be  ineligible  a  second  time ;  and  that  besides  a  gen- 
eral authority  to  execute  the  National  laws,  it  ought  to  enjoy  the  Executive  rights 
vested  in  Congress  by  the  Confederation. 

8.  Resd.  that  the  Executive  and  a  convenient  number  of  the  National  Ju- 
diciary, ought  to  compose  a  Council  of  revision  with  authority  to  examine  every 
act  of  the  National  Legislature  before  it  shall  operate,  &  every  act  of  a  particular 
Legislature  before  a  Negative  thereon  shall  be  final ;  and  that  the  dissent  of  the 
said  Council  shall  amount  to  a  rejection,  unless  the  Act  of  the  National  Legis- 
lature be  again  passed,  or  that  of  a  particular  Legislature  be  again  negatived 
by  of  the  members  of  each  branch. 

9.  Resd.  that  a  National  Judiciary  be  established  to  consist  of  one  or  more 
supreme  tribunals,  and  of  inferior  tribunals  to  be  chosen  by  the  National  Legis- 
lature, to  hold  their  offices  during  good  behaviour ;  and  to  receive  punctually 
at  stated  times  fixed  compensation  for  their  services,  in  which  no  increase  or 
diminution  shall  be  made  so  as  to  affect  the  persons  actually  in  office  at  the  time 
of  such  increase  or  diminution,  that  the  jurisdiction  of  the  inferior  tribunals 
shall  be  to  hear  &  determine  in  the  first  instance,  and  of  the  supreme  tribunal  to 
hear  and  determine  in  the  dernier  resort  all  piracies,  &  felonies  on  the  high  seas, 
captures  from  an  ■enemy ;  cases  in  which  foreigners  or  citizens  of  other  States 
applying  to  such  jurisdictions  may  be  interested,  or  which  respect  the  collection 
of  the  National  revenue ;  impeachments  of  any  National  officers,  and  questions 
which  may  involve  the  national  peace  and  harmony. 

10.  Resolv".  that  provision  ought  to  be  made  for  the  admission  of  States  law- 
fully arising  within  the  limits  of  the  United  States,  whether  from  a  voluntary 
junction  of  Government  &  Territory  or  otherwise,  with  the  consent  of  a  number 
of  voices  in  the  National  legislature  less  than  the  whole. 

11.  Res'1,  that  a  Republican  Government  &  the  territory  of  each  State,  except 
in  the  instance  of  a  voluntary  junction  of  Government  &  territory,  ought  to  be 
guaranteed  by  the  United  States  to  each  State 

12.  Resd.  that  provision  ought  to  be  made  for  the  continuance  of  Congress 
and  their  authorities  and  privileges,  until  a  given  day  after  the  reform  of  the 
articles  of  Union  shall  be  adopted,  and  for  the  completion  of  all  their  engage- 
ments. 

13.  Resd.  that  provision  ought  to  be  made  for  the  amendment  of  the  Articles 
of  Union  whensoever  it  shall  seem  necessary,  and  that  the  assent  of  the  National 
Legislature  ought  not  to  be  required  thereto. 

14.  Resd.  that  the  Legislative  Executive  &  Judiciary  powers  within  the  several 
States  ought  to  be  bound  by  oath  to  support  the  articles  of  Union. 

15.  Resd.  that  the  amendments  which  shall  be  offered  to  the  Confederation, 
by  the  Convention  ought  at  a  proper  time,  or  times,  after  the  approbation  of 


522  THE    UNITED   STATES  I    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Congress  to  be  submitted  to  an  assembly  or  assemblies  of  Representatives,  recom- 
mended by  the  several  Legislatures  to  be  expressly  chosen  by  the  people,  to  con- 
sider &  decide  thereon. 

II.    OUTLINE   OF   THE   PINCKNEY    PLAN    PRESENTED   TO    THE 
CONVENTION    MAY    29,    1787.1 

1.  A  Confederation  between  the  free  and  independent  States  of  N.  H.  etc.  is 
hereby  solemnly  made  uniting  them  together  under  one  general  superintending 
Government  for  their  common  Benefit  and  for  their  Defense  and  Security  against 
all  Designs  and  Leagues  that  may  be  injurious  to  their  Interests  and  against  all 
Forcfe]  [  ?]  and  Attacks  offered  to  or  made  upon  them  or  any  of  them 

2  The  Stile 

3  Mutual  Intercourse  —  Community  of  Privileges  —  Surrender  of  Criminals 
—  Faith  to  Proceedings  etc. 

4  Two  Branches  of  the  Legislature  —  Senate  —  House  of  Delegates  —  to- 
gether the  U.  S.  in  Congress  assembled 

H.  D.  to  consist  of  one  Member  for  every  thousand  Inhabitants  §  of  Blacks 
included 

Senate  to  be  elected  from  four  Districts  —  to  serve  by  Rotation  of  four 
Years  —  to  be  elected  by  the  H.  D.  either  from  among  themselves  or  the  People 
at  large 

5  The  Senate  and  H.  D.  shall  by  joint  Ballot  annually  [septennially]  chuse  the 
Presid'.  U.  S.  from  among  themselves  or  the  People  at  large. — ■  In  the  Presd'.  the 
executive  authority  of  the  U.  S.  shall  be  vested. —  His  Powers  and  Duties  —  He 
shall  have  a  Right  to  advise  with  the  Heads  of  the  different  Departments  as  his 
Council 

6  Council  of  Revision,  consisting  of  the  Presid'.  S.  for  for.  Affairs,  S.  of 
War,  Heads  of  the  Departments  of  Treasury  and  Admiralty  or  any  two  of  them 
togr  w'  the  Presid'. 

7  The  Members  of  S.  and  H.  D.  shall  each  have  one  Vote,  and  shall  be  paid 
out  of  the  common  Treasury. 

8  The  Time  of  the  Election  of  the  Members  of  the  H.  D.  and  of  the  Meeting 
of  U.  S.  in  C.  assembled. 

9  No  State  to  make  Treaties  —  lay  interfering  Duties  —  keep  a  naval  or  land 
Force  Militia  excepted  to  be  disciplined  etc  according  to  the  Regulations  of 
the  U.  S. 

1  This  outline  of  the  so-called  Pinckney  plan  laid  before  the  Federal  Convention  on 
May  29,  1787,  immediately  after  that  of  Mr.  Randolph,  was  found  by  Professor  Andrew  C. 
McLaughlin  among  the  Wilson  papers  deposited  in  the  Pennsylvania  Historical  Society  and 
identified  by  him  as  in  James  Wilson's  handwriting.  It  is  believed  to  be  a  summary  made 
by  Mr.  Wilson  either  during  the  reading  of  the  Pinckney  plan  upon  its  introduction,  or  from 
the  original  draft  referred  to  the  Committee  of  Detail,  of  which  Mr.  Wilson  was  a  member. 
For  fuller  particulars  concerning  the  draft,  see  J.  Franklin  Jameson,  Studies  in  the  Federal 
Constitution.  Annual  Report  of  the  American  Historical  Association,  1902,  Vol.  i,  pp.  130-1. 

Plan  here  is  reprinted  from  The  American  Historical  Review,  July,  1904,  Vol.  IX,  pp. 
741-747. 


APPENDIX  523 

10.  Each  State  retains  its  Rights  not  expressly  delegated  —  But  no  Bill  of 
the  Legislature  of  any  State  shall  become  a  law  till  it  shall  have  been  laid  before 
S.  and  H.  D.  in  C.  assembled  and  received  their  Approbation. 

11.  The  exclusive  Power  of  S.  and  H.  D.  in  C.  assembled 

12.  The  S.  and  H.  D.  in  C.  ass.  shall  have  exclusive  Power  of  regulating  trade 
and  levying  Imposts  —  Each  State  may  lay  Embargoes  in  Times  of  Scarcity 

13  of  establishing  Post-Offices 

14.  S.  and  H.  D.  in  C.  ass.  shall  be  the  last  Resort  on  Appeal  in  Disputes  be- 
tween two  or  more  States ;  which  Authority  shall  be  exercised  in  the  following 
Manner  etc 

15.  S.  and  H.  D.  in  C.  ass.  shall  institute  offices  and  appoint  officers  for  the  De- 
partments of  for.  Affairs,  War,  Treasury  and  Admiralty. 

They  shall  have  the  exclusive  Power  of  declaring  what  shall  be  Treason  and 
Misp.  of  Treason  agl.  U.  S.—  and  of  instituting  a  federal  judicial  Court,  to  which 
an  Appeal  shall  be  allowed  from  the  judicial  Courts  of  the  several  States  in  all 
Causes  wherein  Questions  shall  arise  on  the  Construction  of  Treaties  made  by 
U.  S. —  or  on  the  Laws  of  Nations  —  or  on  the  Regulations  of  U.  S.  concerning 
Trade  and  Revenue  —  or  wherein  U.  S.  shall  be  a  Party  —  The  Court  shall  con- 
sist of  Judges  to  be  appointed  during  good  Behaviour —  S  and  H.  D.  in  C. 
ass.  shall  have  the  exclusive  Right  of  instituting  in  each  State  a  Court  of  Ad- 
miralty, and  appointing  the  Judges  etc  of  the  same  for  all  maritime  Causes  which 
may  arise  therein  respectively 

16.  S  and  H.  D.  in  C.  Ass  shall  have  the  exclusive  Right  of  coining  Money  — 
regulating  its  Alloy  and  Value  —  fixing  the  Standard  of  Weights  and  Measures 
throughout  U.  S. 

17.  Points  in  which  the  Assent  of  more  than  a  bare  Majority  shall  be  necessary. 
18  Impeachments  shall  be  by  the  H.  D.  before  the  Senate  and  the  Judges  of 

the  federal  judicial  Court. 

19.  S.  and  H.  D.  in  C.  ass.  shall  regulate  the  Militia  thro'  the  U.  S. 

20.  Means  of  enforcing  and  compelling  the  Payment  of  the  Quota  of  each 
State. 

21.  Manner  and  Conditions  of  admitting  new  States. 

22.  Power  of  dividing  annexing  and  consolidating  States,  on  the  Consent  and 
Petition  of  such  States. 

23.  The  assent  of  the  Legislature  of  States  shall  be  sufficient  to  invest 
future  additional  Powers  in  U.  S.  in  C.  ass.  and  shall  bind  the  whole  Confederacy. 

24.  The  Articles  of  Confederation  shall  be  inviolably  observed,  and  the  Union 
shall  be  perpetual :  unless  altered  as  before  directed 

25.  The  said  States  of  N.  H.  etc  guarrantee  mutually  each  other  and  their 
Rights  against  all  other  Powers  and  against  all  Rebellion  etc. 


524  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

III.     REPORT  OF  THE  COMMITTEE  OF  THE  WHOLE  ON  MR.  RAN- 
DOLPH'S PROPOSITIONS,  JUNE  13,  1787.1 

1.  Resd.  that  it  is  the  opinion  of  this  Committee  that  a  National  Governm'. 
ought  to  be  established,  consisting  of  a  supreme  Legislative,  Executive  &  Ju- 
diciary. 

2.  Resold.  that  the  National  Legislature  ought  to  consist  of  two  branches. 

3.  Resd.  that  the  members  of  the  first  branch  of  the  National  Legislature  ought 
to  be  elected  by  the  people  of  the  several  States  for  the  term  of  three  years,  to 
receive  fixed  Stipends  by  which  they  may  be  compensated  for  the  devotion  of 
their  time  to  public  service,  to  be  paid  out  of  the  National  Treasury :  to  be 
ineligible  to  any  office  established  by  a  particular  State,  or  under  the  authority 
of  the  U.  States,  (except  those  peculiarly  belonging  to  the  functions  of  the  first 
branch),  during  the  term  of  service,  and  under  the  national  Government  for  the 
Space  of  one  year  after  its  expiration. 

4.  Resd.  that  the  members  of  the  second  branch  of  the  Nat1.  Legislature  ought 
to  be  chosen  by  the  individual  Legislatures,  to  be  of  the  age  of  30  years  at  least, 
to  hold  their  offices  for  a  term  sufficient  to  ensure  their  independency,  namely, 
seven  years,  to  receive  fixed  stipends  by  which  they  may  be  compensated  for  the 
devotion  of  their  time  to  public  service  to  be  paid  out  of  the  National  Treasury ; 
to  be  ineligible  to  any  office  established  by  a  particular  State,  or  under  the  au- 
thority of  the  U.  States,  (except  those  peculiarly  belonging  to  the  functions  of 
the  second  branch)  during  the  term  of  service,  and  under  the  Nat1.  Gov',  for  the 
space  of  one  year  after  its  expiration. 

5.  Res",  that  each  branch  ought  to  possess  the  right  of  originating  Acts 

6.  Resd.  that  the  Nat1.  Legislature  ought  to  be  empowered  to  enjoy  the  Legis- 
lative rights  vested  in  Cong8,  by  the  Confederation,  and  moreover  to  legislate  in 
all  cases  to  which  the  separate  States  are  incompetent ;  or  in  which  the  harmony 
of  the  U.  S.  may  be  interrupted  by  the  exercise  of  individual  legislation ;  to 
negative  all  laws  passed  by  the  several  States  contravening  in  the  opinion  of  the 
National  Legislature  the  articles  of  Union,  or  any  treaties  subsisting  under  the 
authority  of  the  Union. 

7.  Resd.  that  the  rights  of  suffrage  in  the  1st.  branch  of  the  National  Legis- 
lature, ought  not  to  be  according  to  the  rule  established  in  the  articles  of  confeder- 
ation but  according  to  some  equitable  ratio  of  representation,  namely,  in  pro- 
portion to  the  whole  number  of  white  &  other  free  citizens  &  inhabitants,  of  every 
age  sex  and  condition,  including  those  bound  to  servitude  for  a  term  of  years, 
&  three  fifths  of  all  other  persons,  not  comprehended  in  the  foregoing  descrip- 
tion, except  Indians  not  paying  taxes  in  each  State : 

8.  Resolved  that  the  right  of  suffrage  in  the  2d.  branch  of  the  National  Legis- 
lature ought  to  be  according  to  the  rule  established  for  the  first. 

9.  Resolved  that  a  National  Executive  be  instituted  to  consist  of  a  single 
person,  to  be  chosen  by  the  Nat1.  Legislature  for  the  term  of  seven  years,  with 

1  Documentary  History  of  the  Constitution,  Vol.  iii,  pp.  120-3. 


APPENDIX  525 

power  to  carry  into  execution  the  national  laws,  to  appoint  to  offices  in  cases  not 
otherwise  provided  for  —  to  be  ineligible  a  second  time,  &  to  be  removeable  on 
impeachment  and  conviction  of  malpractices  or  neglect  of  duty  —  to  receive  a 
fixed  stipend  by  which  he  may  be  compensated  for  the  devotion  of  his  time  to 
public  service  to  be  paid  out  of  the  national  Treasury. 

10.  Resold.  that  the  nat1.  Executive  shall  have  a  right  to  negative  any  Legis- 
lative Act,  which  shall  not  be  afterwards  passed  unless  by  two  thirds  of  each 
branch  of  the  National  Legislature. 

11.  Resold.  that  a  Nat1.  Judiciary  be  established,  to  consist  of  one  supreme 
tribunal,  the  Judges  of  which  to  be  appointed  by  the  2d.  branch  of  the  Nat1.  Legis- 
lature, to  hold  their  offices  during  good  behaviour,  &  to  receive  punctually  at 
stated  times  a  fixed  compensation  for  their  services,  in  which  no  increase  or 
diminution  shall  be  made,  so  as  to  affect  the  persons  actually  in  office  at  the  time 
of  such  increase  or  diminution. 

12.  Resold.  'that  the  Nat1.  Legislature  be  empowered  to  appoint  inferior 
Tribunals. 

13.  Resd.  that  the  jurisdiction  of  the  Nat1.  Judiciary  shall  extend  to  all  cases 
which  respect  the  collection  of  the  Nat1,  revenue,  impeachments  of  any  Nat1. 
Officers,  and  questions  which  involve  the  national  peace  &  harmony. 

14.  Resd.  that  provision  ought  to  be  made  for  the  admission  of  States  law- 
fully arising  within  the  limits  of  the  U.  States,  whether  from  a  voluntary  junc- 
tion of  Government  &  territory  or  otherwise,  with  the  consent  of  a  number  of 
voices  in  the  Nat1.  Legislature  less  than  the  whole. 

15.  Resd.  that  provision  ought  to  be  made  for  the  continuance  of  Congress 
and  their  authorities  and  privileges  untill  a  given  day  after  the  reform  of  the  arti- 
cles of  Union  shall  be  adopted  and  for  the  completion  of  all  their  engagements. 

16.  Resd.  that  a  Republican  Constitution  &  its  existing  laws  ought  to  be  guar- 
anteed to  each  State  by  the  U.  States. 

17.  Res'1,  that  provision  ought  to  be  made  for  the  amendment  of  the  Articles 
of  Union  whensoever  it  shall  seem  necessary. 

18.  Resd.  that  the  Legislative,  Executive  &  Judiciary  powers  within  the  sev- 
eral States  ought  to  be  bound  by  oath  to  support  the  articles  of  Union. 

19.  Resd.  that  the  amendments  which  shall  be  offered  to  the  confederation  by 
the  convention  ought  at  a  proper  time  or  times  after  the  approbation  of  Cong3,  to 
be  submitted  to  an  Assembly  or  Assemblies  recommended  by  the  several  Legis- 
latures to  be  expressly  chosen  by  the  people  to  consider  and  decide  thereon. 


IV.    TEXT  OF  THE  NEW  JERSEY  PLAN,  MOVED  BY  MR.  PATTER- 
SON JUNE    15,   1787.1 

1.  Resd.  that  the  articles  of  Confederation  ought  to  be  so  revised,  corrected, 
&  enlarged,  as  to  render  the  federal  Constitution  adequate  to  the  exigences  of 
Government,  &  the  preservation  of  the  Union. 

1  Documentary  History,  Vol.  iii,  pp.  125-8. 


526  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

2.  Resd.  that  in  addition  to  the  powers  vested  in  the  U.  States  in  Congress, 
by  the  present  existing  articles  of  Confederation,  they  be  authorized  to  pass  acts 
for  raising  a  revenue,  by  levying  a  duty  or  duties  on  all  goods  or  merchandizes 
of  foreign  growth  or  manufacture,  imported  into  any  part  of  the  U.  States,  by 
Stamps  on  paper,  vellum  or  parchment,  and  by  a  postage  on  all  letters  or  pack- 
ages passing  through  the  general  post-Office,  to  be  applied  to  such  federal  purposes 
as  they  shall  deem  proper  &  expedient ;  to  make  rules  &  regulations  for  the  col- 
lection thereof ;  and  the  same  from  time  to  time,  to  alter  &  amend  in  such  manner 
as  they  shall  think  proper :  to  pass  Acts  for  the  regulation  of  trade  &  commerce 
as  well  with  foreign  nations  as  -with  each  other :  provided  that  all  punishments, 
fines,  forfeitures  &  penalties  to  be  incurred  for  contravening  such  acts  rules  and 
regulations  shall  be  adjudged  by  the  Common  law  Judiciaries  of  the  State  in 
which  any  offense  contrary  to  the  true  intent  &  meaning  of  such  Acts  rules  & 
regulations  shall  have  been  committed  or  perpetrated,  with  liberty  of  commencing 
in  the  first  instance  all  suits  &  prosecutions  for  that  purpose  in  the  superior 
Common  law  Judiciary  in  such  State,  subject  nevertheless,  for  the  correction  of 
all  errors,  both  in  law  &  fact  in  rendering  judgment,  to  an  appeal  to  the  Judiciary 
of  the  U.  States. 

3.  Resd.  that  whenever  requisitions  shall  be  necessary,  instead  of  the  rule 
for  making  requisitions  mentioned  in  the  articles  of  Confederation,  the  United 
States  in  Cong",  be  authorized  to  make  such  requisitions  in  proportion  to  the 
whole  number  of  white  &  other  free  citizens  &  inhabitants  of  every  age  sex  and 
condition  including  those  bound  to  servitude  for  a  term  of  years  &  three  fifths 
of  all  other  persons  not  comprehended  in  the  foregoing  description,  except  In- 
dians not  paying  taxes;  that  if  such  requisitions  be  not  complied  with,  in  the  time 
specified  therein,  to  direct  the  collection  thereof  in  the  non  complying  States  & 
for  that  purpose  to  devise  and  pass  acts  directing  &  authorizing  the  same;  pro- 
vided that  none  of  the  powers  hereby  vested  in  the  U.  States  in  Cong8,  shall  be 
exercised  without  the  consent  of  at  least  States,  and  in  that  proportion  if 
the  number  of  Confederated  States  should  hereafter  be  increased  or  diminished. 

4.  Resd.  that  the  U.  States  in  Cong*,  be  authorized  to  elect  a  federal  Executive 
to  consist  of  persons,  to  continue  in  office  for  the  term  of  years,  to 
receive  punctually  at  stated  times  a  fixed  compensation  for  their  services,  in  which 
no  increase  nor  diminution  shall  be  made  so  as  to  affect  the  persons  composing 
the  Executive  at  the  time  of  such  increase  or  diminution,  to  be  paid  out  of  the 
federal  treasury ;  to  be  incapable  of  holding  any  other  office  or  appointment  dur- 
ing their  time  of  service  and  for  years  thereafter;  to  be  ineligible  a  second 
time,  &  removeable  by  Cong*,  on  application  by  a  majority  of  the  Executives  of 
the  several  States ;  that  the  Executives  besides  their  general  authority  to  execute 
the  federal  acts  ought  to  appoint  all  federal  officers  not  otherwise  provided  for, 
&  to  direct  all  military  operations ;  provided  that  none  of  the  persons  composing 
the  federal  Executive  shall  on  any  occasion  take  command  of  any  troops,  so  as 
personally  to  conduct  any  enterprise  as  General,  or  in  any  other  capacity. 

5.  Resd.  that  a  federal  Judiciary  be  established  to  consist  of  a  supreme  Trib- 


APPENDIX 


527 


unal  the  Judges  of  which  to  be  appointed  by  the  Executive,  &  to  hold  their  offices 
during  good  behaviour,  to  receive  punctually  at  stated  times  a  fixed  compensation 
for  their  services  in  which  no  increase  nor  diminution  shall  be  made,  so  as  to 
affect  the  persons  actually  in  office  at  the  time  of  such  increase  or  diminution : 
that  the  Judiciary  so  established  shall  have  authority  to  hear  &  determine  in  the 
first  instance  on  all  impeachments  of  federal  officers,  &  by  way  of  appeal  in  the 
dernier  resort  in  all  cases  touching  the  rights  of  Ambassadors,  in  all  cases  of  cap- 
tures from  an  enemy,  in  all  cases  of  piracies  &  felonies  on  the  high  seas,  in  all 
cases  in  which  foreigners  may  be  interested,  in  the  construction  of  any  treaty  or 
treaties,  or  which  may  arise  on  any  of  the  Acts  for  regulation  of  trade,  or 
the  collection  of  the  federal  Revenue :  that  none  of  the  Judiciary  shall  during  the 
time  they  remain  in  Office  be  capable  of  receive  or  holding  any  other  office  or 
appointment  during  their  time  of  service,  or  for  thereafter. 

6.  Resd.  that  all  Acts  of  the  U.  States  in  Cong8,  made  by  virtue  &  in  pursuance 
of  the  powers  hereby  &  by  the  articles  of  confederation  vested  in  them,  and  all 
Treaties  made  &  ratified  under  the  authority  of  the  U.  States  shall  be  the  supreme 
law  of  the  respective  States  so  far  forth  as  those  Acts  or  Treaties  shall  relate  to 
the  said  States  or  their  Citizens,  and  that  the  Judiciary  of  the  several  States  shall 
be  bound  thereby  in  their  decisions,  any  thing  in  the  respective  laws  of  the 
Individual  States  to  the  Contrary  notwithstanding:  and  that  if  any  State,  or  any 
body  of  men  in  any  State  shall  oppose  or  prevent  ye.  carrying  into  execution  such 
acts  or  treaties,  the  federal  Executive  shall  be  authorized  to  call  forth  ye  power 
of  the  Confederated  States,  or  so  much  thereof  as  may  be  necessary  to  enforce 
and  compel  an  obedience  to  such  Acts,  or  an  Observance  of  such  Treaties. 

7.  Resd.  that  provision  be  made  for  the  admission  of  new  States  into  the 

Union. 

8.  Res",  that  the  rule  for  naturalization  ought  to  be  the  same  in  every  State. 

9.  Resd.  that  a  Citizen  of  one  State  committing  an  offence  in  another  State  of 
the  Union,  shall  be  deemed  guilty  of  the  same  offence  as  if  it  had  been  committed 
by  a  Citizen  of  the  State  in  which  the  offence  was  committed. 

V     ALEXANDER  HAMILTON'S  SKETCH  OF  A  GOVERNMENT  FOR 
THE  UNITED  STATES,  PRESENTED  JUNE  18,  1787.1 

I  "The  Supreme  Legislative  power  of  the  United  States  of  America  to  be 
vested  in  two  different  bodies  of  men;  the  one  to  be  called  the  Assembly,  the 
other  the  Senate  who  together  shall  form  the  Legislature  of  the  United  States 
with  power  to  pass  all  laws  whatsoever  subject  to  the  Negative  hereafter  men- 
tioned. 

II  The  Assembly  to  consist  of  persons  elected  by  the  people  to  serve  for 

three  years. 

III.  The  Senate  to  consist  of  persons  elected  to  serve  during  good  behaviour; 

i  Documentary  History,  Vol.  iii,  pp.  149-151. 


528  THE    UNITED    STATES  :    A    STUDY   IN    INTERNATIONAL   ORGANIZATION 

their  election  to  be  made  by  electors  chosen  for  that  purpose  by  the  people:  in 
order  to  this  the  States  to  be  divided  into  election  districts.  On  the  death,  re- 
moval or  resignation  of  any  Senator  his  place  to  be  filled  out  of  the  district  from 
which   he  came. 

IV.  The  supreme  Executive  authority  of  the  United  States  to  be  vested  in  a 
Governour  to  be  elected  to  serve  during  good  behaviour  —  the  election  to  be 
made  by  Electors  chosen  by  the  people  in  the  Election  Districts  aforesaid  — 
The  authorities  &  functions  of  the  Executive  to  be  as  follows:  to  have  a  negative 
on  all  laws  about  to  be  passed,  and  the  execution  of  all  laws  passed,  to  have  the 
direction  of  war  when  authorized  or  begun;  to  have  with  the  advice  and  appro- 
bation of  the  Senate  the  power  of  making  all  treaties;  to  have  the  sole  appoint- 
ment of  the  heads  or  chief  officers  of  the  departments  of  Finance,  War  and  For- 
eign Affairs;  to  have  the  nomination  of  all  other  officers  (Ambassadors  to  for- 
eign Nations  included)  subject  to  the  approbation  or  rejection  of  the  Senate;  to 
have  the  power  of  pardoning  all  offences  except  Treason;  which  he  shall  not 
pardon  without  the  approbation  of  the  Senate. 

V.  On  the  death  resignation  or  removal  of  the  Governour  his  authorities  to 
be  exercised  by  the  President  of  the  Senate  till  a  Successor  be  appointed. 

VI  The  Senate  to  have  the  sole  power  of  declaring  war,  the  power  of  ad- 
vising and  approving  all  Treaties,  the  power  of  approving  or  rejecting  all  appoint- 
ments of  officers  except  the  heads  or  chiefs  of  the  departments  of  Finance  War 
and  foreign  affairs. 

VII.  The  supreme  Judicial  authority  to  be  vested  in  Judges  to  hold 
their  offices  during  good  behaviour  with  adequate  and  permanent  salaries.  1'his 
Court  to  have  original  jurisdiction  in  all  causes  of  capture,  and  an  appellative 
jurisdiction  in  all  causes  in  which  the  revenues  of  the  general  Government  or  the 
citizens  of  foreign  nations  are  concerned. 

VIII.  The  Legislature  of  the  United  States  to  have  power  to  institute  Courts 
in  each  State  for  the  determination  of  all  matters  of  general  concern. 

IX.  The  Governour  Senators  and  all  officers  of  the  United  States  to  be  liable 
to  impeachment  for  mal-  and  corrupt  conduct ;  and  upon  conviction  to  be  removed 
from  office,  &  disqualified  for  holding  any  place  of  trust  or  profit  —  all  impeach- 
ments to  be  tried  by  a  Court  to  consist  of  the  Chief  or  Judge  of  the  Superior 
Court  of  Law  of  each  State,  provided  such  Judge  shall  hold  his  place  during 
good  behavior,  and  have  a  permanent  salary. 

X  All  laws  of  the  particular  States  contrary  to  the  Constitution  or  laws  of 
the  United  States  to  be  utterly  void ;  and  the  better  to  prevent  such  laws  being 
passed,  the  Governour  or  president  of  each  State  shall  be  appointed  by  the  Gen- 
eral Government  and  shall  have  a  negative  upon  the  laws  about  to  be  passed  in 
the  State  of  which  he  is  the  Governour  or  President. 

XI  No  State  to  have  any  forces  land  or  Naval;  and  the  Militia  of  all  the 
States  to  be  under  the  sole  and  exclusive  direction  of  the  United  States,  the 
officers  of  which  to  be  appointed  and  commissioned  by  them 


APPENDIX 


529 


VI.    MR.    RANDOLPH'S    RESOLUTIONS    AS    REVISED    AND    EN- 
LARGED BY  THE  CONVENTION  AND  REFERRED  JULY  26,  1787, 
TO  THE  COMMITTEE  OF  DETAIL.1 
Journals, 

June  20.  I.  Resolved,    That    the    government    of    the    United    States 

ought  to  consist  of  a  supreme  legislative,  judiciary,  and 
executive. 
June  21.  II.  Resolved,  That  the  legislature  consist  of  two  branches. 

III.  Resolved,  That  the  members  of  the  first  branch  of  the 
legislature   ought  to   be   elected  by  the   people   of  the 
several  states,  for  the  term  of  two  years ;  to  be  paid  out 
June  22.  of  the  publick  treasury ;  to  receive  an  adequate  com- 

pensation for  their  services;  to  be  of  the  age  of  twenty- 
June  23.  five   years  at   least ;  to  be   ineligible  and   incapable   of 

holding  any  office  under  the  authority  of  the  United 
States   (except  those  peculiarly  belonging  to  the  func- 
tions of  the  first  branch)  during  the  term  of  service  of 
the  first  branch. 
June  25.  IV.  Resolved,  That  the  members  of  the  second  branch  of  the 

legislature  of  the  United  States  ought  to  be  chosen  by 

the  individual  legislatures ;  to  be  of  the  age  of  thirty 

June  26.  years  at  least ;  to  hold  their  offices  for  six  years,  one 

third  to  go  out  biennially ;  to  receive  a  compensation 
for  the  devotion  of  their  time  to  the  publick  service ;  to 
be  ineligible  to  and  incapable  of  holding  any  office,  under 
the  authority  of  the  United  States  (except  those  pe- 
culiarly belonging  to  the  functions  of  the  second 
branch)  during  the  term  for  which  they  are  elected, 
and  for  one  year  thereafter. 
V.  Resolved,  That  each  branch  ought  to  possess  the  right  of 
originating  acts. 
Postponed  27.  VI.  Resolved,  That  the  national  legislature  ought  to  possess 

the  legislative  rights  vested  in  Congress  by  the  con  fed- 
July  16.  eration ;  and  moreover,  to  legislate  in  all  cases  for  the 

general  interests  of  the  union,  and  also  in  those  to  which 
July  17.  the  states  are  separately  incompetent,  or  in  which  the 

harmony  of  the  United  States  may  be  interrupted  by 
the  exercise  of  individual  legislation. 
VII.  Resolved,  That  the  legislative  acts  of  the  United  States, 
made  by  virtue  and  in  pursuance  of  the  articles  of 
union,  and  all  treaties  made  and  ratified  under  the  au- 
thority of  the  United  States,  shall  be  the  supreme  law 

1  Journal,  Acts  and  Proceedings  of  Ike  Federal  Convention,  1819,  pp.  207-213. 


530  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

of  the  respective  states,  as  far  as  those  acts  or  treaties 
July  17.  shall  relate  to  the  said  states,  or  their  citizens  and  in- 

habitants;  and  that  the  judiciaries  of  the  several  states 
shall  be  bound  thereby  in  their  decisions,  any  thing  in 
the  respective  laws  of  the  individual  States  to  the  con- 
trary, notwithstanding. 
July  16.  VIII.  Resolved,  That  in  the  original   formation  of  the  legisla- 

ture of  the  United  States,  the  first  branch  thereof  shall 
consist  of  sixty-five  members ;  of  which  number 
New  Hampshire  shall  send.  . .  .three, 

Massachusetts    eight, 

Rhode  Island   one, 

Connecticut   five, 

New  York six, 

New  Jersey four, 

Pennsylvania    eight, 

Delaware  one, 

Maryland   six, 

Virginia    ten, 

North  Carolina    five, 

South  Carolina    five, 

Georgia   three. 

But  as  the  present  situation  of  the  states  may  prob- 
ably alter  in  the  number  of  their  inhabitants,  the  legis- 
lature of  the  United  States  shall  be  authorized,  from 
time  to  time,  to  apportion  the  number  of  representa- 
tives ;  and  in  case  any  of  the  states  shall  hereafter  be 
divided,  or  enlarged  by  addition  of  territory,  or  any 
two  or  more  states  united,  or  any  new  states  created 
within  the  limits  of  the  United  States,  the  legislature  of 
the  United  States  shall  possess  authority  to  regulate  the 
number  of  representatives,  in  any  of  the  foregoing 
cases,  upon  the  principle  of  their  number  of  inhabitants 
according  to  the  provisions  hereafter  mentioned, 
namely  —  Provided  always,  that  representation  ought  to 
be  proportioned  according  to  direct  taxation.  And  in 
order  to  ascertain  the  alteration  in  the  direct  taxation, 
which  may  be  required  from  time  to  time  by  the 
changes  in  the  relative  circumstances  of  the  states  — 
IX.  Resolved,  That  a  census  be  taken  within  six  years  from 
the  first  meeting  of  the  legislature  of  the  United  States, 
and  once  within  the  term  of  every  ten  years  afterwards, 
of  all  the  inhabitants  of  the  United  States,  in  the  man- 
ner and  according  to  the  ratio  recommended  by  Con- 


APPENDIX  531 

gress  in  their  resolution  of  April  18,  1783;  and  that  the 
legislature  of  the   United  States  shall  proportion  the 
direct  taxation  accordingly. 
X.  Resolved,  That  all  bills  for  raising  or  appropriating  money, 
and  for  fixing  the  salaries  of  the  officers  of  the  govern- 
ment of  the  United  States,  shall  originate  in  the  first 
branch  of  the  legislature  of  the  United  States,  and  shall 
not  be  altered  or  amended  by  the  second  branch ;  and 
that  no  money  shall  be  drawn  from  the  publick  treasury, 
but  in  pursuance  of  appropriations  to  be  originated  by 
the  first  branch. 
XI.  Resolved,  That  in  the  second  branch  of  the  legislature  of 
the  United  States,  each  state  shall  have  an  equal  vote. 
July  26.  XII.  Resolved,  That  a  national  executive  be  instituted,  to  con- 

sist of  a  single  person ;  to  be  chosen  by  the  national  leg- 
islature, for  the  term  of  seven  years ;  to  be  ineligible  a 
second  time ;  with  power  to  carry  into  execution  the  na- 
tional laws ;  to  appoint  to  offices  in  cases  not  otherwise 
provided  for ;  to  be  removable  on  impeachment,  and 
conviction  of  mal-practice  or  neglect  of  duty ;  to  receive 
a  fixed  compensation  for  the  devotion  of  his  time  to  the 
publick  service ;  to  be  paid  out  of  the  publick  treasury. 
July  21.  XIII.  Resolved,  That  the  national  executive  shall  have  a  right 

to  negative  any  legislative  act,  which  shall  not  be  after- 
wards passed,  unless  by  two  third  parts  of  each  branch 
of  the  national  legislature. 
July  18.  XIV.  Resolved,  That  a  national  judiciary  be  established,  to  con- 

July  21.  sist  of  one  supreme  tribunal,  the  judges  of  which  shall 

be  appointed  by  the  second  branch  of  the  national  legis- 
July  18.  lature;  to  hold  their  offices  during  good  behaviour;  to 

receive  punctually,  at  stated  times,  a  fixed  compensation 
for  their  services,  in  which  no  diminution  shall  be  made, 
so  as  to  affect  the  persons  actually  in  office  at  the  time 
of  such  diminution. 
XV.  Resolved,  That  the  national  legislature  be  empowered  to 
appoint  inferior  tribunals. 
XVI.  Resolved,  That  the  jurisdiction  of  the  national  judiciary 
shall  extend  to  cases  arising  under  laws  passed  by  the 
general  legislature ;  and  to  such  other  questions  as  in- 
volve the  national  peace  and  harmony. 
XVII.  Resolved,  That  provision  ought  to  be  made  for  the  ad- 
mission of  states  lawfully  arising  within  the  limits  of 
the  United  States,  whether  from  a  voluntary  junction 
of  government  and  territory,  or  otherwise,   with  the 


532  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

consent  of  a  number  of  voices  in  the  national  legislature 
less  than  the  whole. 
XVIII.  Resolved,  That  a  republican  form  of  government  shall  be 
guarantied  to  each  state ;  and  that  each  state  shall  be 
protected  against  foreign  and  domestick  violence. 

July  23.  XIX.  Resolved,  That  provision  ought  to  be  made  for  the  amend- 

ment of  the  articles  of  union,  whensoever  it  shall  seem 
necessary. 
XX.  Resolved,  That  the  legislative,  executive,  and  judiciary 
powers,  within  the  several  states,  and  of  the  national 
government,  ought  to  be  bound,  by  oath,  to  support  the 
articles  of  union. 
XXI.  Resolved,  That  the  amendments  which  shall  be  offered  to 
the  confederation  by  the  convention  ought,  at  a  proper 
time  or  times  after  the  approbation  of  Congress,  to  be 
submitted  to  an  assembly  or  assemblies  of  representa- 
tives, recommended  by  the  several  legislatures,  to  be 
expressly  chosen  by  the  people  to  consider  and  decide 
thereon. 
XXII.  Resolved,  That  the  representation  in  the  second  branch  of 
the  legislature  of  the  United  States  consist  of  two  mem- 
bers from  each  state,  who  shall  vote  per  capita. 

July  26.  XXIII.  Resolved,  That  it  be  an  instruction  to  the  committee,  to 

whom  were  referred  the  proceedings  of  the  convention 
for  the  establishment  of  a  national  government,  to  re- 
ceive a  clause  or  clauses,  requiring  certain  qualifications 
of  property  and  citizenship,  in  the  United  States,  for 
the  executive,  the  judiciary,  and  the  members  of  both 
branches  of  the  legislature  of  the  United  States. 

VII.     REPORT  OF  THE  COMMITTEE  OF  DETAIL,  AUGUST  6,  1787.1 

"  We  the  people  of  the  States  of  New  Hampshire,  Massachusetts,  Rhode-Island 
and  Providence  Plantations,  Connecticut,  New- York,  New-Jersey,  Pennsylvania, 
Delaware,  Maryland,  Virginia  North-Carolina,  South-Carolina,  and  Georgia,  do 
ordain,  declare,  and  establish  the  following  Constitution  for  the  Government  of 
Ourselves  and  our  Posterity. 

Article  I 

The  stile  of  the  Government  shall  be,  "  The  United  States  of  America  " 

II 

The  Government  shall  consist  of  supreme  legislative,  executive,  and  judicial 
powers. 

1  Documentary  History,  Vol.  iii,  pp.  444-458. 


APPENDIX  533 


III 


The  legislative  power  shall  be  vested  in  a  Congress,  to  consist  of  two  separate 
and  distinct  bodies  of  men,  a  House  of  Representatives  and  a  Senate ;  each  of 
which  shall  in  all  cases  have  a  negative  on  the  other.  The  Legislature  shall  meet 
on  the  first  Monday  in  December  every  year. 

IV 

Sect.  1.  The  members  of  the  House  of  Representatives  shall  be  chosen 
every  second  year,  by  the  people  of  the  several  States  comprehended  within  this 
Union.  The  qualifications  of  the  electors  shall  be  the  same,  from  time  to  time, 
as  those  of  the  electors  in  the  several  States,  of  the  most  numerous  branch  of  their 
own  legislatures. 

Sect.  2.  Every  member  of  the  House  of  Representatives  shall  be  of  the 
age  of  twenty  five  years  at  least;  shall  have  been  a  citizen  of  the  United  States 
for  at  least  three  years  before  his  election ;  and  shall  be,  at  the  time  of  his  elec- 
tion, a  resident  of  the  State  in  which  he  shall  be  chosen. 

Sect.  3.  The  House  of  Representatives  shall,  at  its  first  formation,  and 
until  the  number  of  citizens  and  inhabitants  shall  be  taken  in  the  manner  herein 
after  described,  consist  of  sixty  five  Members,  of  whom  three  shall  be  chosen  in 
New  Hampshire,  eight  in  Massachusetts,  one  in  Rhode-Island  and  Providence 
Plantations,  five  in  Connecticut,  six  in  New- York,  four  in  New-Jersey,  eight  in 
Pennsylvania,  one  in  Delaware,  six  in  Maryland,  ten  in  Virginia,  five  in  North- 
Carolina,  five  in  South-Carolina,  and  three  in  Georgia. 

Sect-  4-  As  the  proportions  of  numbers  in  different  States  will  alter  from 
time  to  time ;  as  some  of  the  States  may  hereafter  be  divided ;  as  others  may  be 
enlarged  by  addition  of  territory ;  as  two  or  more  States  may  be  united ;  as  new 
States  will  be  erected  within  the  limits  of  the  United  States,  the  Legislature  shall, 
in  each  of  these  cases,  regulate  the  number  of  representatives  by  the  number  of 
inhabitants,  according  to  the  provisions  herein  after  made,  at  the  rate  of  one  for 
every  forty  thousand. 

Sect.  5.  All  bills  for  raising  or  appropriating  money,  and  for  fixing  the 
salaries  of  the  officers  of  Government,  shall  originate  in  the  House  of  Repre- 
sentatives, and  shall  not  be  altered  or  amended  by  the  Senate.  No  money  shall 
be  drawn  from  the  public  Treasury,  but  in  pursuance  of  appropriations  that  shall 
originate  in  the  House  of  Representatives. 

Sect.  6.  The  House  of  Representatives  shall  have  the  sole  power  of  im- 
peachment.    It  shall  choose  its  Speaker  and  other  officers. 

Sect.  7.  Vacancies  in  the  House  of  Representatives  shall  be  supplied  by 
writs  of  election  from  the  executive  authority  of  the  State,  in  the  representation 
from  which  it  shall  happen. 

V 

Sect.  1.  The  Senate  of  the  United  States  shall  be  chosen  by  the  Legislatures 
of  the  several  States.     Each  Legislature  shall  chuse  two  members.     Vacancies 


534  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

may  be  supplied  by  the  Executive  until  the  next  meeting  of  the  Legislature. 
Each  member  shall  have  one  vote. 

Sect.  2.  The  Senators  shall  be  chosen  for  six  years ;  but  immediately  after 
the  first  election  they  shall  be  divided,  by  lot,  into  three  classes,  as  nearly  as  may 
be,  numbered  one,  two  and  three.  The  seats  of  the  members  of  the  first  class 
shall  be  vacated  at  the  expiration  of  the  second  year,  of  the  second  class  at  the 
expiration  of  the  fourth  year,  of  the  third  class  at  the  expiration  of  the  sixth 
year,  so  that  a  third  part  of  the  members  may  be  chosen  every  second  year. 

Sect.  3.  Every  member  of  the  Senate  shall  be  of  the  age  of  thirty  years  at 
least ;  shall  have  been  a  citizen  in  the  United  States  for  at  least  four  years  before 
his  election ;  and  shall  be,  at  the  time  of  his  election,  a  resident  of  the  State  for 
which  he  shall  be  chosen. 

Sect.  4.     The  Senate  shall  chuse  its  own  President  and  other  officers. 

VI 

Sect.  1.  The  times  and  places  and  manner  of  holding  the  elections  of  the 
members  of  each  House  shall  be  prescribed  by  the  Legislature  of  each  State ;  but 
their  provisions  concerning  them  may,  at  any  time,  be  altered  by  the  Legislature 
of  the  United  States. 

Sect.  2.  The  Legislature  of  the  United  States  shall  have  authority  to  estab- 
lish such  uniform  qualifications  of  the  members  of  each  House,  with  regard  to 
property,  as  to  the  said  Legislature  shall  seem  expedient. 

Sect.  3.  In  each  House  a  majority  of  the  members  shall  constitute  a  quorum 
to  do  business;  but  a  smaller  number  may  adjourn  from  day  to  day. 

Sect.  4.  Each  House  shall  be  the  judge  of  the  elections,  returns  and  quali- 
fications of  its  own  members. 

Sect.  5.  Freedom  of  speech  and  debate  in  the  Legislature  shall  not  be  im- 
peached or  questioned  in  any  Court  or  place  out  of  the  Legislature ;  and  the  mem- 
bers of  each  House  shall,  in  all  cases,  except  treason  felony  and  breach  of  the 
peace,  be  privileged  from  arrest  during  their  attendance  at  Congress,  and  in  going 
to  and  returning  from  it. 

Sect.  6.  Each  House  may  determine  the  rules  of  its  proceedings  ;  may  punish 
its  members  for  disorderly  behaviour ;  and  may  expel  a  member. 

Sect.  7.  The  House  of  Representatives,  and  the  Senate,  when  it  shall  be 
acting  in  a  legislative  capacity,  shall  keep  a  Journal  of  their  proceedings,  and  shall, 
from  time  to  time,  publish  them :  and  the  yeas  and  nays  of  the  members  of  each 
House,  on  any  question,  shall  at  the  desire  of  one-fifth  part  of  the  members 
present,  be  entered  on  the  journal. 

Sect.  8.  Neither  House,  without  the  consent  of  the  other,  shall  adjourn  for 
more  than  three  days,  nor  to  any  other  place  than  that  at  which  the  two  Houses 
are  sitting.  But  this  regulation  shall  not  extend  to  the  Senate,  when  it  shall 
exercise  the  powers  mentioned  in  the  article. 

Sect.  9.  The  members  of  each  House  shall  be  ineligible  to,  and  incapable  of 
holding  any  office  under  the  authority  of  the  United  States,  during  the  time  for 


APPENDIX  535 

which  they  shall  respectively  be  elected:  and  the  members  of  the  Senate  shall  be 
ineligible  to,  and  incapable  of  holding  any  such  office  for  one  year  afterwards. 

Sect.  10.  The  members  of  each  House  shall  receive  a  compensation  for 
their  services,  to  be  ascertained  and  paid  by  the  State,  in  which  they  shall  be 
chosen. 

Sect.  11.  The  enacting  stile  of  the  laws  of  the  United  States  shall  be,  "  Be 
it  enacted  by  the  Senate  and  Representatives  in  Congress  assembled." 

Sect.  12.  Each  House  shall  possess  the  right  of  originating  bills,  except  in 
the  cases  beforementioned. 

Sect.  13.  Every  bill,  which  shall  have  passed  the  House  of  Representatives 
and  the  Senate,  shall,  before  it  become  a  law,  be  presented  to  the  President  of 
the  United  States  for  his  revision:  if,  upon  such  revision,  he  approve  of  it,  he 
shall  signify  his  approbation  by  signing  it:  But  if,  upon  such  revision,  it  shall 
appear  to  him  improper  for  being  passed  into  a  law,  he  shall  return  it,  together 
with  his  objections  against  it,  to  that  House  in  which  it  shall  have  originated,  who 
shall  enter  the  objections  at  large  on  their  journal  and  proceed  to  reconsider  the 
bill.  But  if  after  such  reconsideration,  two  thirds  of  that  House  shall,  notwith- 
standing the  objections  of  the  President,  agree  to  pass  it,  it  shall  together  with  his 
objections,  be  sent  to  the  other  House,  by  which  it  shall  likewise  be  reconsidered, 
and  if  approved  by  two  thirds  of  the  other  House  also,  it  shall  become  a  law. 
But  in  all  such  cases,  the  votes  of  both  Houses  shall  be  determined  by  yeas  and 
nays ;  and  the  names  of  the  persons  voting  for  or  against  the  bill  shall  be  entered 
on  the  journal  of  each  House  respectively.  If  any  bill  shall  not  be  returned  by 
the  President  within  seven  days  after  it  shall  have  been  presented  to  him,  it  shall 
be  a  law,  unless  the  legislature  by  their  adjournment,  prevent  its  return ;  in  which 
case  it  shall  be  a  law. 

VII 

Sect.  1.  The  Legislature  of  the  United  States  shall  have  the  power  to  lay 
and  collect  taxes,  duties,  imposts  and  excises ; 

To  regulate  commerce  with  foreign  nations,  and  among  the  several  States ; 

To  establish  an  uniform  rule  of  naturalization  throughout  the  United  States; 

To  coin  money ; 

To  regulate  the  value  of  foreign  coin ; 

To  fix  the  standard  of  weights  and  measures, 

To  establish  Post-offices; 

To  borrow  money,  and  emit  bills  on  the  credit  of  the  United  States ; 

To  appoint  a  Treasurer  by  ballot ; 

To  constitute  tribunals  inferior  to  the  Supreme  Court; 

To  make  rules  concerning  captures  on  land  and  water; 

To  declare  the  law  and  punishment  of  piracies  and  felonies  committed  on  the 
high  seas,  and  the  punishment  of  counterfeiting  the  coin  of  the  United  States, 
and  of  offences  against  the  law  of  nations; 

To  subdue  a  rebellion  in  any  State,  on  the  application  of  its  legislature; 


536  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL    ORGANIZATION 

To  make  war ; 

To  raise  armies ; 

To  build  and  equip  fleets ; 

To  call  forth  the  aid  of  the  militia,  in  order  to  execute  the  laws  of  the  Union, 
enforce  treaties,  suppress  insurrections,  and  repel  invasions ; 

And  to  make  all  laws  that  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested,  by  this  Constitution, 
in  the  government  of  the  United  States,  or  in  any  department  or  officer  thereof ; 

Sect.  2.  Treason  against  the  United  States  shall  consist  only  in  levying  war 
against  the  United  States,  or  any  of  them ;  and  in  adhering  to  the  enemies  of  the 
United  States,  or  any  of  them.  The  Legislature  of  the  United  States  shall  have 
power  to  declare  the  punishment  of  treason.  No  person  shall  be  convicted  of 
treason,  unless  on  the  testimony  of  two  witnesses.  No  attainder  of  treason  shall 
work  corruption  of  bloods  nor  forfeiture,  except  during  the  life  of  the  person 
attainted. 

Sect.  3.  The  proportions  of  direct  taxation  shall  be  regulated  by  the  whole 
number  of  white  and  other  free  citizens  and  inhabitants,  of  every  age,  sex  and 
condition,  including  those  bound  to  servitude  for  a  term  of  years,  and  three  fifths 
of  all  other  persons  not  comprehended  in  the  foregoing  description,  (except 
Indians  not  paying  taxes)  which  number  shall,  within  six  years  after  the  first 
meeting  of  the  Legislature,  and  within  the  term  of  every  ten  years  afterwards, 
be  taken  in  such  manner  as  the  said  Legislature  shall  direct. 

Sect.  4.  No  tax  or  duty  shall  be  laid  by  the  Legislature  on  articles  exported 
from  any  State ;  nor  on  the  migration  or  importation  of  such  persons  as  the  sev- 
eral States  shall  think  proper  to  admit ;  nor  shall  such  migration  or  importation  be 
prohibited. 

Sect.  5.  No  capitation  tax  shall  be  laid,  unless  in  proportion  to  the  Census 
hereinbefore  directed  to  be  taken. 

Sect.  6.  No  navigation  act  shall  be  passed  without  the  assent  of  two  thirds 
of  the  members  present  in  each  House. 

Sect.  7.     The  United  States  shall  not  grant  any  title  of  Nobility. 

VIII 

The  acts  of  the  Legislature  of  the  United  States  made  in  pursuance  of  this 
Constitution,  and  all  treaties  made  under  the  authority  of  the  United  States  shall 
be  the  supreme  law  of  the  several  States,  and  of  their  citizens  and  inhabitants ;  and 
the  judges  in  the  several  States  shall  be  bound  thereby  in  their  decisions;  any 
thing  in  the  Constitution  or  laws  of  the  several  States  to  the  contrary  notwith- 
standing. 

IX 

Sect.  1.  The  Senate  of  the  United  States  shall  have  power  to  make  treaties, 
and  to  appoint  Ambassadors,  and  Judges  of  the  Supreme  Court. 

Sect.  2.     In  all  disputes  and  controversies  now  subsisting,  or  that  may  here- 


APPENDIX  537 

Iter  subsist  between  two  or  more  States,  respecting  jurisdiction  or  territory,  the 
Senate  shall  possess  the  following  powers.  Whenever  the  Legislature,  or  the 
Executive  authority,  or  lawful  Agent  of  any  State,  in  controversy  with  another, 
shall  by  memorial  to  the  Senate,  state  the  matter  in  question,  and  apply  for  a 
hearing;  notice  of  such  memorial  and  application  shall  be  given  by  order  of  the 
Senate,  to  the  Legislature  or  the  Executive  authority  of  the  other  State  in  Con- 
troversy. The  Senate  shall  also  assign  a  day  for  the  appearance  of  the  parties, 
by  their  agents,  before  the  House.  The  Agents  shall  be  directed  to  appoint,  by 
joint  consent,  commissioners  or  judges  to  constitute  a  Court  for  hearing  and  de- 
termining the,  matter  in  question.  But  if  the  Agents  cannot  agree,  the  Senate 
shall  name  three  persons  out  of  each  of  the  several  States ;  and  from  the  list  of 
such  persons  each  party  shall  alternately  strike  out  one,  until  the  number  shall  be 
reduced  to  thirteen ;  and  from  that  number  not  less  than  seven  nor  more  than  nine 
names,  as  the  Senate  shall  direct,  shall  in  their  presence,  be  drawn  out  by  lot; 
and  the  persons  whose  names  shall  be  so  drawn,  or  any  five  of  them  shall  be  com- 
missioners or  Judges  to  hear  and  finally  determine  the  controversy ;  provided  a 
majority  of  the  Judges,  who  shall  hear  the  cause,  agree  in  the  determination.  If 
either  party  shall  neglect  to  attend  at  the  day  assigned,  without  shewing  sufficient 
reasons  for  not  attending,  or  being  present  shall  refuse  to  strike,  the  Senate  shall 
proceed  to  nominate  three  persons  out  of  each  State,  and  the  Clerk  of  the  Senate 
shall  strike  in  behalf  of  the  party  absent  or  refusing.  If  any  of  the  parties  shall 
refuse  to  submit  to  the  authority  of  such  Court ;  or  shall  not  appear  to  prosecute 
or  defend  their  claim  or  cause,  the  Court  shall  nevertheless  proceed  to  pronounce 
judgment.  The  judgment  shall  be  final  and  conclusive.  The  proceedings  shall 
be  transmitted  to  the  President  of  the  Senate,  and  shall  be  lodged  among  the 
public  records,  for  the  security  of  the  parties  concerned.  Every  Commissioner 
shall,  before  he  sit  in  judgment,  take  an  oath,  to  be  administered  by  one  of  the 
Judges  of  the  Supreme  or  Superior  Court  of  the  State  where  the  cause  shall  be 
tried,  "  well  and  truly  to  hear  and  determine  the  matter  in  question  according  to 
the  best  of  his  judgment,  without  favor,  affection,  or  hope  of  reward." 

Sect.  3.  All  controversies  concerning  lands  claimed  under  different  grants 
of  two  or  more  States,  whose  jurisdictions,  as  they  respect  such  lands  shall  have 
been  decided  or  adjusted  subsequent  to  such  grants,  or  any  of  them,  shall,  on 
application  to  the  Senate,  be  finally  determined,  as  near  as  may  be,  in  the  same 
manner  as  is  before  prescribed  for  deciding  controversies  between  different  States. 

X 

Sect.  1.  The  Executive  Power  of  the  United  States  shall  be  vested  in  a 
single  person.  His  stile  shall  be,  "  The  President  of  the  United  States  of  Amer- 
ica;  "  and  his  title  shall  be,  "His  Excellency."  He  shall  be  elected  by  ballot  by 
the  Legislature.  He  shall  hold  his  office  during  the  term  of  seven  years ;  but  shall 
not  be  elected  a  second  time. 

Sect.  2.  He  shall,  from  time  to  time,  give  information  to  the  Legislature,  of 
the  state  of  the  Union :  he  may  recommend  to  their  consideration  such  measures 
as  he  shall  judge  necessary,  and  expedient:  he  may  convene  them  on  extraordi- 


538  THE    UNITED    STATES:    A   STUDY    IN    INTERNATIONAL   ORGANIZATION 

nary  occasions.  In  case  of  disagreement  between  the  two  Houses,  with  regard 
to  the  time  of  adjournment,  he  may  adjourn  them  to  such  time  as  he  thinks 
proper:  he  shall  take  care  that  the  laws  of  the  United  States  be  duly  and  faith- 
fully executed:  he  shall  commission  all  the  officers  of  the  United  States;  and  shall 
appoint  officers  in  all  cases  not  otherwise  provided  for  by  this  Constitution.  He 
shall  receive  Ambassadors,  and  may  correspond  with  the  supreme  Executives  of 
the  several  States.  He  shall  have  power  to  grant  reprieves  and  pardons ;  but  his 
pardon  shall  not  be  pleadable  in  bar  of  an  impeachment.  He  shall  be  commander 
in  chief  of  the  Army  and  Navy  of  the  United  States,  and  of  the  Militia  of  the 
Several  States.  He  shall,  at  stated  times,  receive  for  his  services,  a  compensation, 
which  shall  neither  be  increased  nor  diminished  during  his  continuance  in  office. 
Before  he  shall  enter  on  the  duties  of  his  department,  he  shall  take  the  following 

oath  or  affirmation,  "  I  solemnly  swear,   (or  affirm)   that  I  will  faithfully 

execute  the  office  of  President  of  the  United  States  of  America."  He  shall  be 
removed  from  his  office  on  impeachment  by  the  House  of  Representatives,  and 
conviction  in  the  supreme  Court,  of  treason,  bribery,  or  corruption.  In  case  of 
his  removal  as  aforesaid,  death,  resignation,  or  disability  to  discharge  the  powers 
and  duties  of  his  office,  the  President  of  the  Senate  shall  exercise  those  powers 
and  duties,  until  another  President  of  the  United  States  be  chosen,  or  until  the 
disability  of  the  President  be  removed. 

XI 

Sect.  1.  The  Judicial  Power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  Courts  as  shall,  when  necessary,  from  time 
to  time,  be  constituted  by  the  Legislature  of  the  United  States. 

Sect.  2.  The  Judges  of  the  Supreme  Court,  and  of  the  Inferior  Courts,  shall 
hold  their  offices  during  good  behaviour.  They  shall,  at  stated  times,  receive  for 
their  services,  a  compensation,  which  shall  not  be  diminished  during  their  con- 
tinuance in  office. 

Sect.  3.  The  Jurisdiction  of  the  Supreme  Court  shall  extend  to  all  cases 
arising  under  laws  passed  by  the  Legislature  of  the  United  States ;  to  all  cases 
affecting  Ambassadors,  other  Public  Ministers  and  Consuls ;  to  the  trial  of  im- 
peachments of  Officers  of  the  United  States;  to  all  cases  of  Admiralty  and  mari- 
time jurisdiction ;  to  controversies  between  two  or  more  States,  (except  such  as 
shall  regard  Territory  or  Jurisdiction)  between  a  State  and  Citizens  of  another 
State,  between  Citizens  of  different  States,  and  between  a  State  or  the  Citizens 
thereof  and  foreign  States,  citizens  or  subjects.  In  cases  of  impeachment,  cases 
affecting  Ambassadors,  other  Public  Ministers  and  Consuls,  and  those  in  which  a 
State  shall  be  party,  this  jurisdiction  shall  be  original.  In  all  the  other  cases 
before  mentioned,  it  shall  be  appellate,  with  such  exceptions  and  under  such  regu- 
lations as  the  Legislature  shall  make.  The  Legislature  may  assign  any  part  of 
the  jurisdiction  above  mentioned  (except  the  trial  of  the  President  of  the  United 
States)  in  the  manner,  and  under  the  limitations  which  it  shall  think  proper,  to 
such  Inferior  Courts,  as  it  shall  constitute  from  time  to  time. 


APPENDIX  539 

Sect.  4.  The  trial  of  all  criminal  offences  (except  in  cases  of  impeachments) 
shall  be  in  the  State  where  they  shall  be  committed ;  and  shall  be  by  Jury. 

Sect.  5.  Judgment,  in  cases  of  Impeachment,  shall  not  extend  further  than 
to  removal  from  Office,  and  disqualification  to  hold  and  enjoy  any  office  of 
honour,  trust  or  profit,  under  the  United  States.  But  the  party  convicted  shall, 
nevertheless  be  liable  and  subject  to  indictment,  trial,  judgment  and  punishment 
according  to  law. 

XII 

No  State  shall  coin  money ;  nor  grant  letters  of  marque  and  reprisal ;  nor  enter 
into  any  treaty,  alliance,  or  confederation ;  nor  grant  any  title  of  Nobility. 

XIII 

No  State,  without  the  consent  of  the  Legislature  of  the  United  States,  shall 
emit  bills  of  credit,  or  make  any  thing  but  specie  a  tender  in  payment  of  debts; 
nor  lay  imposts  or  duties  on  imports ;  not  keep  troops  or  ships  of  war  in  time 
of  peace;  nor  enter  into  any  agreement  or  compact  with  another  State,  or  with 
any  foreign  power ;  nor  engage  in  any  war,  unless  it  shall  be  actually  invaded  by 
enemies,  or  the  danger  of  invasion  be  so  imminent,  as  not  to  admit  of  delay, 
until  the  Legislature  of  the  United  States  can  be  consulted. 

XIV 

The  Citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immunities 
of  citizens  in  the  several  States. 

XV 

Any  person  charged  with  treason,  felony  or  high  misdemeanor  in  any  State, 
who  shall  flee  from  justice,  and  shall  be  found  in  any  other  State,  shall,  on  demand 
of  the  Executive  power  of  the  State  from  which  he  fled,  be  delivered  up  and 
removed  to  the  State  having  jurisdiction  of  the  offence. 

XVI 

Full  faith  shall  be  given  in  each  State  to  the  acts  of  the  Legislatures,  and  to 
the  records  and  judicial  proceedings  of  the  Courts  and  Magistrates  of  every  other 
State. 

XVII 

New  States  lawfully  constituted  or  established  within  the  limits  of  the  United 
States  may  be  admitted,  by  the  Legislature,  into  this  Government ;  but  to  such  ad- 
mission the  consent  of  two  thirds  of  the  members  present  in  each  House  shall  be 
necessary.  If  a  new  State  shall  arise  within  the  limits  of  any  of  the  present 
States,  the  consent  of  the  Legislatures  of  such  States  shall  be  also  necessary  to 
its  admission.  If  the  admission  be  consented  to,  the  new  States  shall  be  admitted 
on  the  same  terms  with  the  original  States.  But  the  Legislature  may  make  con- 
ditions with  the  new  States,  concerning  the  public  debt  which  shall  be  then  sub- 
sisting. 


540  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

XVIII 

The  United  States  shall  guaranty  to  each  State  a  Republican  form  of  Gov- 
ernment ;  and  shall  protect  each  State  against  foreign  invasions,  and,  on  the  appli- 
cation of  its  Legislature,  against  domestic  violence. 

XIX 

On  the  application  of  the  Legislatures  of  two  thirds  of  the  States  in  the  Union, 
for  an  amendment  of  this  Constitution,  the  Legislature  of  the  United  States  shall 
call  a  Convention  for  that  purpose. 

XX 

The  members  of  the  Legislatures,  and  the  Executive  and  Judicial  officers  of 
the  United  States,  and  of  the  several  States,  shall  be  bound  by  oath  to  support 
this  Constitution. 

XXI 

The  ratification  of  the  Conventions  of  States  shall  be  sufficient  for  organ- 

izing this  Constitution. 

XXII 

This  Constitution  shall  be  laid  before  the  United  States  in  Congress  assem- 
bled, for  their  approbation ;  and  it  is  the  opinion  of  this  Convention,  that  it  should 
be  afterwards  submitted  to  a  Convention  chosen,  under  the  recommendation  of 
its  legislature,  in  order  to  receive  the  ratification  of  such  Convention. 

XXIII 

To  introduce  this  government,  it  is  the  opinion  of  this  Convention,  that  each 
assenting  Convention  should  notify  its  assent  and  ratification  to  the  United  States 
in  Congress  assembled ;  that  Congress,  after  receiving  the  assent  and  ratification 
of  the  Conventions  of  States,  should  appoint  and  publish  a  day,  as  early  as 

may  be,  and  appoint  a  place,  for  commencing  proceedings  under  this  Constitu- 
tion ;  that  after  such  publication,  the  Legislatures  of  the  several  States  should 
elect  members  of  the  Senate,  and  direct  the  election  of  members  of  the  House  of 
Representatives ;  and  that  the  members  of  the  Legislature  should  meet  at  the 
time  and  place  assigned  by  Congress,  and  should,  as  soon  as  may  be,  after  their 
meeting,  choose  the  President  of  the  United  States,  and  proceed  to  execute  this 
Constitution." 


APPENDIX  541 


VIII.     PROCEEDINGS  OF  CONVENTION  REFERRED  TO  THE  COM- 
MITTEE OF  STYLE  AND  ARRANGEMENT,  SEPTEMBER  10,  1787. l 

We  the  People  of  the  States  of  New-Hampshire,  Massachusetts,  Rhode-Island 
and  Providence  Plantations,  Connecticut,  New- York,  New-Jersey,  Pennsylvania. 
Delaware,  Maryland,  Virginia,  North-Carolina,  South-Carolina,  and  Georgia,  do 
ordain,  declare  and  establish  the  following  Constitution  for  the  Government  of 
Ourselves  and  our  Posterity. 

Article  I 
The  stile  of  this  Government  shall  be,  "  The  United  States  of  America." 

II 

The  Government  shall  consist  of  supreme  legislative,  executive  and  judicial 
powers. 

Ill 

The  legislative  power  shall  be  vested  in  a  Congress,  to  consist  of  two  separate 
and  distinct  bodies  of  men,  a  House  of  Representatives,  and  a  Senate.  The  Legis- 
lature shall  meet  at  least  once  in  every  year,  and  such  meeting  shall  be  on  the  first 
Monday  in  December  unless  a  different  day  shall  be  appointed  by  law. 

IV 

Sect.  1.  The  Members  of  the  House  of  Representatives  shall  be  chosen  every 
second  year,  bv  the  people  of  the  several  states  comprehended  within  this  Union. 
The  qualifications  of  the  electors  shall  be  the  same,  from  time  to  time,  as  those  of 
the  electors  in  the  several  States,  of  the  most  numerous  branch  of  their  own  leg- 
islatures. 

Sect.  2  Every  Member  of  the  House  of  Representatives  shall  be  of  the  age 
of  twenty-five  years  at  least;  shall  have  been  a  citizen  of  the  United  Slates  for  at 
least  seven  years  before  his  election ;  and  shall  be,  at  the  time  of  his  election,  an 
inhabitant  of  the  State  in  which  he  shall  be  chosen. 

Sect.  3.  The  House  of  Representatives  shall,  at  its  first  formation  and  until 
the  number  of  citizens  and  inhabitants  shall  be  taken  in  the  manner  herein  after 
described,  consist  of  sixty-five  members,  of  whom  three  shall  be  chosen  in  New- 
Hampshire,  eight  in  Massachusetts,  one  in  Rhode-Island  and  Providence  Planta- 
tions, five  in  Connecticut,  six  in  New-York,  four  in  New-Jersey,  eight  in  Pennsyl- 

i  Compiled  by  Professor  Farrand  and  with  his  permission  reprinted  from  Farrand,  The 
Records  of   the  Federal  Convention,  vol.   ii,   pp.   565-579. 


542  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

vania,  one  in  Delaware,  six  in  Maryland,  ten  in  Virginia,  five  in  North-Carolina, 
five  in  South-Carolina,  and  three  in  Georgia. 

Sect.  4.  As  the  proportions  of  numbers  in  the  different  states  will  alter  from 
time  to  time;  as  some  of  the  States  may  hereafter  be  divided;  as  others  may  be 
enlarged  by  addition  of  territory;  as  two  or  more  States  may  be  united;  as  new 
States  will  be  erected  within  the  limits  of  the  United  States,  the  Legislature  shall, 
in  each  of  these  cases,  regulate  the  number  of  representatives  by  the  number  of  in- 
habitants, according  to  the  rule  hereinafter  made  for  direct  taxation  not  exceeding 
the  rate  of  one  for  every  forty  thousand.  Provided  that  every  State  shall  have  at 
least  one  representative. 

Sect.  6.1  The  House  of  Representatives  shall  have  the  sole  power  of  im- 
peachment.    It  shall  choose  its  Speaker  and  other  officers. 

Sect.  7.  Vacancies  in  the  House  of  Representatives  shall  be  supplied  by  writs 
of  election  from  the  executive  authority  of  the  State,  in  the  representation  from 
which  they  shall  happen. 

V 

Sect.  1.  The  Senate  of  the  United  States  shall  be  chosen  by  the  Legislatures 
of  the  several  States.  Each  Legislature  shall  chuse  two  members.  Vacancies 
happening  by  refusals  to  accept,  resignations  or  otherwise  may  be  supplied  by  the 
Legislature  of  the  State  in  the  representation  of  which  such  vacancies  shall  hap- 
pen, or  by  the  executive  thereof  until  the  next  meeting  of  the  Legislature.  Each 
member  shall  have  one  vote. 

Sect.  2.  The  Senators  shall  be  chosen  for  six  years;  but  immediately  after 
they  shall  be  assembled  in  consequence  of  the  first  election  they  shall  be  divided, 
by  lot,  into  three  classes,  as  nearly  as  may  be,  numbered  one,  two  and  three.  The 
seats  of  the  members  of  the  first  class  shall  be  vacated  at  the  expiration  of  the 
second  year,  of  the  second  class  at  the  expiration  of  the  fourth  year,  of  the  third 
class  at  the  expiration  of  the  sixth  year,  so  that  a  third  part  of  the  members  may  be 
chosen  every  second  year. 

Sect.  3.  Every  member  of  the  Senate  shall  be  of  the  age  of  thirty  years  at 
least ;  shall  have  been  a  citizen  of  the  United  States  for  at  least  nine  years  before 
his  election;  and  shall  be,  at  the  time  of  his  election,  an  inhabitant  of  the  State  for 
which  he  shall  be  chosen. 

Sect.  4.     The  Senate  shall  chuse  its  own  President  and  other  officers. 

VI 

Sect.  1.  The  times  and  places  and  the  manner  of  holding  the  elections  of  the 
members  of  each  House  shall  be  prescribed  by  the  Legislature  of  each  State  re- 
spectively ;  but  regulations  in  each  of  the  foregoing  cases  may,  at  any  time,  be  made 
or  altered  by  the  Legislature  of  the  United  States. 

Sect.  3.-     In  each  House  a  majority  of  the  members  shall  constitute  a  quorum 

1  Sect.  5  was  struck  out. 

2  Sect.  2  was  struck  out. 


APPENDIX  543 

to  do  business;  but  a  smaller  number  may  adjourn  from  day  to  day,  and  may  be 
authorised  to  compel  the  attendance  of  absent  members  in  such  manner  and  under 
such  penalties  as  each  House  may  provide. 

Sect.  4.  Each  House  shall  be  the  judge  of  the  elections,  returns  and  qualifica- 
tions of  its  own  members. 

Sect.  5.  Freedom  of  speech  and  debate  in  the  Legislature  shall  not  be  im- 
peached or  questioned  in  any  court  or  place  out  of  the  Legislature;  and  the  mem- 
bers of  each  House  shall,  in  all  cases,  except  treason,  felony  and  breach  of  the 
peace,  be  privileged  from  arrest  during  their  attendance  at  Congress,  and  in 
going  to  and  returning  from  it. 

Sect.  6.  Each  House  may  determine  the  rules  of  its  proceedings ;  may  punish 
its  members  for  disorderly  behaviour ;  and  may,  with  the  concurrence  of  two 
thirds,  expel  a  member. 

Sect.  7.  The  House  of  Representatives,  and  the  Senate,  shall  keep  a  journal 
of  their  proceedings,  and  shall,  from  time  to  time,  publish  them,  except  such  parts 
thereof  as  in  their  judgment  require  secrecy;  and  the  yeas  and  nays  of  the  mem- 
bers of  each  House,  on  any  question,  shall,  at  the  desire  of  one-fifth  part  of  the 
members  present,  be  entered  on  the  journal. 

Sect.  8.  During  the  session  of  the  Legislature  neither  House,  without  the 
consent  of  the  other,  shall  adjourn  for  more  than  three  days,  nor  to  any  place  than 
that  at  which  the  two  Houses  are  sitting. 

Sect.  9.  The  Members  of  each  House  shall  be  ineligible  to  any  civil  office 
under  the  authority  of  the  United  States  created,  or  the  emoluments  whereof  shall 
have  been  encreased  during  the  time  for  which  they  shall  respectively  be  elected  — 
and  no  person  holding  any  office  under  the  United  States  shall  be  a  Member  of 
either  House  during  his  continuance  in  Office. 

Sect.  10.  The  members  of  each  House  shall  receive  a  compensation  for  their 
services,  to  be  paid  out  of  the  Treasury  of  the  United  States,  to  be  ascertained  by 
law. 

Sect.  11.  The  enacting  stile  of  the  laws  of  the  United  States  shall  be.  "  Be  it 
enacted,  by  the  Senate  and  Representatives  in  Congress  assembled. 

Sect.  12.  All  Bills  for  raising  revenue  shall  originate  in  the  House  of  repre- 
sentatives: but  the  Senate  may  propose  or  concur  with  amendments  as  on  other 
bills.  No  money  shall  be  drawn  from  the  Treasury  but  in  consequence  of  appro- 
priations made  by  law. 

Sect.  13.  Every  bill,  which  shall  have  passed  the  House  of  Representatives 
and  the  Senate,  shall,  before  it  become  a  law,  be  presented  to  the  President  of  the 
United  States,  for  his  revision;  if,  upon  such  revision,  he  approve  of  it,  he  shall 
signify  his  approbation  by  signing  it :  But  if,  upon  such  revision,  it  shall  appear  to 
him  improper  for  being  passed  into  a  law,  he  shall  return  it,  together  with  his  objec- 
tions against  it,  to  that  House  in  which  it  shall  have  originated,  who  shall  enter  the 
objections  at  large  on  their  Journal,  and  proceed  to  reconsider  the  bill.  But  if, 
after  such  reconsideration,  three-fourths  of  that  House  shall,  notwithstanding  the 
objections  of  the  President,  agree  to  pass  it,  it  shall,  together  with  his  objections  be 


544  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

sent  to  the  other  House,  by  which  it  shall  likewise  be  reconsidered,  and,  if  approved 
by  three-fourths  of  the  other  House  also,  it  shall  become  a  law.  But,  in  all  such 
cases,  the  votes  of  both  Houses  shall  be  determined  by  Yeas  and  Nays ;  and  the 
names  of  the  persons  voting  for  or  against  the  bill  shall  be  entered  in  the  Journal 
of  each  House  respectively.  If  any  bill  shall  not  be  returned  by  the  President 
within  ten  days  (Sundays  excepted)  after  it  shall  have  been  presented  to  him, 
it  shall  be  a  law,  unless  the  Legislature,  by  their  adjournment,  prevent  its  return; 
in  which  case  it  shall  not  be  a  law. 

Sect.  14.  Every  order,  resolution  or  vote,  to  which  the  concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary  (except  on  a  question 
of  adjournment,  and  in  the  cases  hereinafter  mentioned)  shall  be  presented  to 
the  President  for  his  revision;  and  before  the  same  shall  have  force,  shall  be 
approved  by  him,  or,  being  disapproved  by  him,  shall  be  repassed  by  the  Senate 
and  House  of  representatives,  according  to  the  rules  and  limitations  prescribed 
in  the  case  of  a  bill. 

VII 

Sect.  1.  The  Legislature  shall  have  power  to  lay  and  collect  taxes,  duties, 
imposts  and  excises,  to  pay  the  debts  and  provide  for  the  common  defence  and 
general  welfare  of  the  United  States. 

To  regulate  commerce  with  foreign  nations,  and  among  the  several  States ;  and 
with  the  Indian  tribes. 

To  establish  an  uniform  rule  of  naturalization  throughout  the  United  States; 

To  coin  money ; 

To  regulate  the  value  of  foreign  coin ; 

To  fix  the  standard  of  weights  and  measures; 

To  establish  post-offices  and  post-roads ; 

To  borrow  money  on  the  credit  of  the  United  States ; 

To  appoint  a  Treasurer  by  joint  ballot ; 

To  constitute  tribunals  inferior  to  the  supreme  court ; 

To  make  rules  concerning  captures  on  land  and  water ; 

To  define  and  punish  piracies  and  felonies  committed  on  the  high  seas,  to 
punish  the  counterfeiting  of  the  securities,  and  current  coin  of  the  United  States, 
and  offences  against  the  law  of  nations ; 

To  declare  war ;  and  grant  letters  of  marque  and  reprisal. 

To  raise  and  support  armies ;  but  no  appropriation  of  money  to  that  use  shall 
be  for  a  longer  term  than  two  years. 

To  provide  &  maintain  a  navy ; 

To  make  rules  for  the  government  and  regulation  of  the  land  and  naval 
forces. 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the  LTnion, 
suppress  insurrections,  and  repel  invasions ; 

To  make  laws  for  organizing,  arming,  and  disciplining  the  militia,  and  for 


APPENDIX  545 

governing  such  part  of  them  as  may  be  employed  in  the  service  of  the  United 
States,  reserving  to  the  States,  respectively,  the  appointment  of  the  Officers,  and 
the  authority  of  training  the  militia  according  to  the  discipline  prescribed  by  the 
United  States. 

To  establish  uniform  laws  on  the  subject  of  bankruptcies. 

To  exercise  exclusive  legislation  in  all  cases  whatsoever  over  such  district  (not 
exceeding  ten  miles  square)  as  may  by  cession  of  particular  States  and  the  ac- 
ceptance of  the  Legislature  become  the  seat  of  the  Govern-ment  of  the  United 
States,  and  to  exercise  like  authority  over  all  Places  purchased,  by  the  consent  of 
the  Legislature  of  the  State,  for  the  erection  of  Forts,  Magazines,  Arsenals,  Dock 
Yards  and  other  needful  buildings. 

To  promote  the  progress  of  science  and  useful  arts  by  securing  for  limited 
times  to  Authors  and  Inventors  the  exclusive  right  to  their  respective  writings  and 
discoveries. 

And  to  make  all  laws  that  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested,  by  this  Constitution, 
in  the  government  of  the  United  States,  or  in  any  department  or  officer  thereof. 

All *  debts  contracted  and  engagements  entered  into,  by  or  under  the  authority 
of  Congress  shall  be  as  valid  against  the  United  States  under  this  constitution  as 
under  the  confederation. 

Sect.  2.  Treason  against  the  United  States  shall  consist  only  in  levying  war 
against  them,  or  in  adhering  to  their  enemies,  giving  them  aid  and  comfort.  The 
Legislature  shall  have  power  to  declare  the  punishment  of  treason.  No  person 
shall  be  convicted  of  treason,  unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court.  No  attainder  of  treason  shall  work 
corruption  of  blood,  nor  forfeiture,  except  during  the  life  of  the  person  attainted. 
The  Legislature  shall  pass  no  bill  of  attainder  nor  any  ex  post  facto  laws. 

Sect.  3.  The  proportions  of  direct  taxation  shall  be  regulated  by  the  whole 
number  of  free  citizens  and  inhabitants,  of  every  age,  sex,  and  condition,  including 
those  bound  to  servitude  for  a  term  of  years,  and  three  fifths  of  all  other  persons 
not  comprehended  in  the  foregoing  description  (except  Indians  not  paying  taxes) 
which  number  shall,  within  three  years  after  the  first  meeting  of  the  Legislature, 
and  within  the  term  of  every  ten  years  afterwards,  be  taken  in  such  manner  as 
the  said  Legislature  shall  direct. 

Sect.  4.  No  tax  or  duty  shall  be  laid  by  the  Legislature  on  articles  exported 
from  any  State.  The  migration  or  importation  of  such  persons  as  the  several 
States  now  existing  shall  think  proper  to  admit  shall  not  be  prohibited  by  the 
Legislature  prior  to  the  year  1808  —  but  a  tax  or  duty  may  be  imposed  on  such 
importation  not  exceeding  ten  dollars  for  each  person.  Xor  shall  any  regulation 
of  commerce  or  revenue  give  preference  to  the  ports  of  one  State  over  those  of 
another,  or  oblige  Vessels  bound  to  or  from  any  State  to  enter,  clear,  or  pay 
duties  in  another. 

i  The  correct  location  of  this  clause  is  uncertain.  It  was  considered  and  adopted  in  con- 
nection with  the  "powers  of  Congress,"  and  so  is  inserted  here 


546  THE    UNITED    STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

And  all  duties,  imposts,  and  excises,  laid  by  the  Legislature,  shall  be  uniform 
throughout  the  United  States. 

Sect.  5.  No  capitation  tax  shall  be  laid,  unless  in  proportion  to  the  census 
herein  before  directed  to  be  taken. 

Sect.  7.1  The  United  States  shall  not  grant  any  title  of  nobility.  No  per- 
son holding  any  office  of  profit  or  trust  under  the  United  States,  shall  without 
the  consent  of  the  Legislature  accept  of  any  present,  emolument,  office,  or  title 
of  any  kind  whatever,  from  any  king,  prince  or  foreign  State. 

VIII 

This  Constitution  and  the  Laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  and  all  treaties  made  or  which  shall  be  made  under  the  authority 
of  the  United  States  shall  be  the  supreme  law  of  the  several  States,  and  of  their 
citizens  and  inhabitants;  and  the  judges  in  the  several  States  shall  be  bound 
thereby  in  their  decisions ;  any  thing  in  the  constitutions  or  laws  of  the  several 
States  to  the  contrary  notwithstanding. 

IX 

Sect.  1.  The  Senate  of  the  United  States  shall  have  power  to  try  all  impeach- 
ments :  but  no  person  shall  be  convicted  without  the  concurrence  of  two  thirds  of 
the  Members  present :  and  every  Member  shall  be  on  oath. 

X 

Sect.  1.  The  Executive  power  of  the  LTnited  States  shall  be  vested  in  a  single 
person.  His  stile  shall  be,  "  The  President  of  the  United  States  of  America ;  " 
and  his  title  shall  be,  "  His  Excellency."  He  shall  hold  his  office  during  the  term 
of  four  years,  and  together  with  the  Vice  President,  chosen  for  the  same  term, 
be  elected  in  the  following  manner. 

Each  State  shall  appoint,  in  such  manner  as  its  legislature  may  direct,  a  number 
of  Electors  equal  to  the  whole  number  of  Senators  and  Members  of  the  House  of 
representatives  to  which  the  State  may  be  entitled  in  the  Legislature.  But  no 
Person  shall  be  appointed  an  Elector  who  is  a  member  of  the  Legislature  of  the 
United  States,  or  who  holds  any  office  of  profit  or  trust  under  the  United  States. 

The  Electors  shall  meet  in  their  respective  States  and  vote  by  ballot  for  two 
Persons  of  whom  one  at  least  shall  not  be  an  inhabitant  of  the  same  State  with 
themselves. —  and  they  shall  make  a  list  of  all  the  Persons  voted  for,  and  of  the 
number  of  votes  for  each,  which  list  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  seat  of  the  general  Government,  directed  to  the  President  of  the 
Senate. 

The  President  of  the  Senate  shall  in  the  presence  of  the  Senate  and  House 
of  representatives  open  all  the  certificates  and  the  votes  shall  then  be  counted. 

1  Sect.  6  was  struck  out. 


APPENDIX  547 

The  Person  having  the  greatest  number  of  votes  shall  be  the  President  (if 
such  number  be  a  majority  of  the  whole  number  of  the  Electors  appointed)  and 
if  there  be  more  than  one  who  have  such  a  majority,  and  have  an  equal  number 
of  votes,  then  the  House  of  representatives  shall  immediately  choose  by  ballot 
one  of  them  for  President,  the  representation  from  each  State  having  one  vote  — 
But  if  no  Person  have  a  majority,  then  from  the  five  highest  on  the  list,  the  House 
of  representatives  shall,  in  like  manner,  choose  by  ballot  the  President  —  In 
the  choice  of  a  President  by  the  House  of  representatives  a  quorum  shall  consist 
of  a  Member  or  Members  from  two  thirds  of  the  States,  and  the  concurrence  of  a 
majority  of  all  the  States  shall  be  necessary  to  such  choice. —  and,  in  every  case 
after  the  choice  of  the  President,  the  Person  having  the  greatest  number  of  votes 
of  the  Electors  shall  be  the  vice-President :  But,  if  there  should  remain  two  or 
more  who  have  equal  votes,  the  Senate  shall  choose  from  them  the  Vice  President 

The  Legislature  may  determine  the  time  of  chusing  the  Electors  and  of  their 
giving  their  votes —  But  the  election  shall  be  on  the  same  day  throughout  the 
United  States 

The  Legislature  may  declare  by  law  what  officer  of  the  United  States  shall 
act  as  President  in  case  of  the  death,  resignation,  or  disability  of  the  President 
and  Vice  President;  and  such  Officer  shall  act  accordingly,  until  such  disability 
be  removed,  or  a  President  shall  be  elected 

Sect.  2.  No  Person  except  a  natural  born  Citizen,  or  a  Citizen  of  the  U.  S. 
at  the  time  of  the  adoption  of  this  Constitution  shall  be  eligible  to  the  office  of 
President ;  nor  shall  any  Person  be  elected  to  that  office,  who  shall  be  under  the 
age  of  35  years,  and  who  has  not  been  in  the  whole,  at  least  14  years  a  resident 
within  the  U.  S. 

Sect.  3.  The  Vice  President  shall  be  ex  officio,  President  of  the  Senate, 
except  when  they  sit  to  try  the  impeachment  of  the  President,  in  which  case  the 
Chief  Justice  shall  preside,  and  excepting  also  when  he  shall  exercise  the  powers 
and  duties  of  President,  in  which  case,  and  in  case  of  his  absence,  the  Senate 
shall  chuse  a  President  pro  tempore  —  The  Vice  President  when  acting  as 
President  of  the  Senate  shall  not  have  a  vote  unless  the  House  be  equally  divided 

Sect.  4.  The  President  by  and  with  the  advice  and  consent  of  the  Senate, 
shall  have  power  to  make  treaties :  and  he  shall  nominate  and  by  and  with  the 
advice  and  consent  of  the  Senate  shall  appoint  Ambassadors,  other  public  Min- 
isters and  Consuls,  Judges  of  the  supreme  Court,  and  all  other  officers  of  the 
U.  S.  whose  appointments  are  not  otherwise  herein  provided  for.  But  no  Treaty 
shall  be  made  without  the  consent  of  two  thirds  of  the  Members  present. 

The  President  shall  have  power  to  fill  up  all  vacancies  that  may  happen  during 
the  recess  of  the  Senate  by  granting  commissions  which  shall  expire  at  the  end  of 
the  next  session  of  the  Senate. 

Sect.  2.1  He  shall,  from  time  to  time,  give  to  the  Legislature  information 
of  the  State  of  the  Union:  and  recommend  to  their  consideration  such  measures 
as  he  shall  judge  necessary,  and  expedient :  he  may  convene  both  or  either  of  the 

1  Original  numbering,  the  sections  above  numbered  2-4  were  insertions. 


548  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

Houses  on  extraordinary  occasions,  and  in  case  of  disagreement  between  the  two 
Houses,  with  regard  to  the  time  of  adjournment,  he  may  adjourn  them  to  such 
time  as  he  shall  think  proper:  he  shall  take  care  that  the  laws  of  the  United  States 
be  duly  and  faithfully  executed:  he  shall  commission  all  the  officers  of  the  United 
States;  and  shall  appoint  to  all  offices  established  by  this  constitution  except  in 
cases  herein  otherwise  provided  for,  and  to  all  offices  which  may  hereafter  be 
created  by  law.  He  shall  receive  Ambassadors,  other  public  Ministers  and  Con- 
suls. He  shall  have  power  to  grant  reprieves  and  pardons  except  in  cases  of 
impeachment.  He  shall  be  Commander  in  Chief  of  the  Army  and  Navy  of  the 
United  States,  and  of  the  Militia  of  the  several  States  when  called  into  the 
actual  service  of  the  United  States;  and  may  require  the  opinion  in  writing  of 
the  principal  officer  in  each  of  the  executive  departments  upon  any  subject 
relating  to  the  duties  of  their  respective  offices.  He  shall,  at  stated  times,  receive 
for  his  services,  a  compensation,  which  shall  neither  be  encreased  nor  diminished 
during  his  continuance  in  office.  Before  he  shall  enter  on  the  duties  of  his  depart- 
ment, he  shall  lake  the  following  Oath  or  Affirmation,  "  I  sol- 
emnly swear  (or  affirm)  that  I  will  faithfully  execute  the  Office  of  President  of 
the  United  States  of  America,  and  will  to  the  best  of  my  judgment  and  power, 
preserve,  protect  and  defend  the  Constitution  of  the  United  States."  He  shall 
be  removed  from  his  office  on  impeachment  by  the  House  of  representatives,  and 
conviction  by  the  Senate,  for  treason  or  bribery  or  other  high  crimes  and  mis- 
demeanors against  the  United  States;  the  Vice  President  and  other  civil  Officers 
of  the  United  States  shall  be  removed  from  Office  on  impeachment  and  conviction 
as  aforesaid;  and  in  case  of  his  removal  as  aforesaid,  death,  absence,  resignation 
or  inability  to  discharge  the  powers  or  duties  of  his  office  the  Vice  President 
shall  exercise  those  powers  and  duties  until  another  President  be  chosen,  or  until 
the  inability  of  the  President  be  removed. 

XI 

Sect.  1.  The  Judicial  Power  of  the  United  States  both  in  law  and  equity 
shall  be  vested  in  one  Supreme  Court,  and  in  such  Inferior  Courts  as  shall,  when 
necessary,  from  time  to  time,  be  constituted  by  the  Legislature  of  the  United 
States. 

Sect.  2.  The  Judges  of  the  Supreme  Court,  and  of  the  Inferior  courts,  shall 
holds  their  offices  during  good  behaviour.  They  shall,  at  stated  times,  receive  for 
their  services,  a  compensation,  which  shall  not  be  diminished  during  their  continu- 
ance in  office. 

Sect.  3.  The  Judicial  Power  shall  extend  to  all  cases  both  in  law  and  equity 
arising  under  this  Constitution  and  the  laws  of  the  United  States,  and  treaties 
made  or  which  shall  be  made  under  their  authority ;  to  all  cases  affecting  Am- 
bassadors, other  Public  Ministers  and  Consuls ;  to  all  cases  of  Admiralty  and 
Maritime  Jurisdiction ;  to  Controversies  to  which  the  United  States  shall  be  a 
party,  to  controversies  between  two  or  more  States  (except  such  as  shall  regard 


APPENDIX  549 

Territory  and  Jurisdiction)  between  a  State  and  citizens  of  another  State,  between 
citizens  of  different  States,  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  and  between  a  State  or  the  citizens  thereof 
and  foreign  States,  citizens  or  subjects.  In  cases  affecting  Ambassadors,  other 
Public  Ministers  and  Consuls,  and  those  in  which  a  State  shall  be  party,  the 
Supreme  Court  shall  have  original  jurisdiction.  In  all  other  cases  beforemen- 
tioned  the  Supreme  Court  shall  have  appellate  jurisdiction  both  as  to  law  and 
fact  with  such  exceptions  and  under  such  regulations  as  the  Legislature  shall 
make. 

Sect.  4.  The  trial  of  all  crimes  (except  in  cases  of  impeachments)  shall  be 
by  jury  and  such  trial  shall  be  held  in  the  State  where  the  said  crimes  shall  have 
been  committed ;  but  when  not  committed  within  any  State  then  the  trial  shall 
be  at  such  place  or  places  as  the  Legislature  may  direct. 

The  privilege  of  the  writ  of  Habeas  Corpus  shall  not  be  suspended ;  unless 
where  in  cases  of  rebellion  or  invasion  the  public  safety  may  require  it. 

Sect.  5.  Judgment,  in  cases  of  Impeachment,  shall  not  extend  further  than 
to  removal  from  office,  and  disqualification  to  hold  and  enjoy  any  office  of  honour, 
trust  or  profit  under  the  United  States.  But  the  Party  convicted  shall  neverthe- 
less, be  liable  and  subject  to  indictment,  trial,  judgment  and  punishment,  accord- 
ing to  law. 

XII 

No  State  shall  coin  money ;  nor  emit  bills  of  credit,  nor  make  anything  but 
gold  or  silver  coin  a  tender  in  payment  of  debts ;  nor  pass  any  bill  of  attainder  or 
ex  post  facto  laws ;  nor  grant  letters  of  marque  and  reprisal,  nor  enter  into  any 
treaty,  alliance,  or  confederation ;  nor  grant  any  title  of  nobility. 

XIII 

No  State,  without  the  consent  of  the  Legislature  of  the  United  States  shall 
lay  imposts  or  duties  on  imports  or  exports,  nor  with  such  consent  but  for  the 
use  of  the  treasury  of  the  United  States ;  nor  keep  troops  or  ships  of  war  in  time 
of  peace;  nor  enter  into  any  agreement  or  compact  with  another  State,  or  with 
any  foreign  power ;  nor  engage  in  any  war,  unless  it  shall  be  actually  invaded  by 
enemies,  or  the  danger  of  invasion  be  so  imminent,  as  not  to  admit  of  a  delay, 
until  the  Legislature  of  the  United  States  can  be  consulted. 

XIV 

The  citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  of  the  several  States. 

XV 

Any  person  charged  with  treason,  felony,  or  other  crime  in  any  State,  who 
shall  flee  from  justice,  and  shall  be  found  in  any  other  State,  shall,  on  dem 


550  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

of  the  Executive  Power  of  the  State  from  which  he  fled,  be  delivered  up  and 
removed  to  the  State  having  jurisdiction  of  the  offence. 

If  any  Person  bound  to  service  or  labor  in  any  of  the  United  States  shall 
escape  into  another  State,  He  or  She  shall  not  be  discharged  from  such  service 
or  labor  in  consequence  of  any  regulations  subsisting  in  the  State  to  which  they 
escape;  but  shall  be  delivered  up  to  the  person  justly  claiming  their  service  or 
labor. 

XVI 

Full  faith  and  credit  shall  be  given  in  each  State  to  the  public  Acts,  records, 
and  judicial  proceedings  of  every  other  State,  and  the  Legislature  may  by  general 
laws  prescribe  the  manner  in  which  such  acts,  records,  and  proceedings  shall  be 
proved  and  the  effect  thereof. 

XVII 

New  States  may  be  admitted  by  the  Legislature  into  this  Union:  but  no  new 
State  shall  be  hereafter  formed  or  erected  within  the  jurisdiction  of  any  of 
the  present  States,  without  the  consent  of  the  Legislature  of  such  State  as  well 
as  of  the  general  Legislature.  Nor  shall  any  State  be  formed  by  the  junction  of 
two  or  more  States  or  parts  thereof  without  the  consent  of  the  Legislatures  of 
such  States  as  well  as  of  the  Legislature  of  the  United  States. 

The  Legislature  shall  have  power  to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the  territory  or  other  property  belonging  to  the  United 
States:  and  nothing  in  this  Constitution  contained  shall  be  so  construed  as  to 
prejudice  any  claims  either  of  the  United  States  or  of  any  particular  State. 

XVIII 

The  United  States  shall  guaranty  to  each  State  a  Republican  form  of  govern- 
ment ;  and  shall  protect  each  State  against  invasions,  and,  on  the  application  of  its- 
Legislature  or  Executive,  against  domestic  violence. 

XIX 

The  Legislature  of  the  United  States,  whenever  two  thirds  of  both  Houses 
shall  deem  necessary,  or  on  the  application  of  two  thirds  of  the  Legislatures  of 
the  several  States,  shall  propose  amendments  to  this  Constitution  which  shall  be 
valid  to  all  intents  and  purposes  as  parts  thereof,  when  the  same  shall  have  been 
ratified  by  three  fourths  at  least  of  the  Legislatures  of  the  several  States,  or  by 
Conventions  in  three  fourths  thereof,  as  one  or  the  other  mode  of  ratification 
may  be  proposed  by  the  Legislature  of  the  United-States:  Provided  that  no 
amendments  which  may  be  made  prior  to  the  year  1808  shall  in  any  manner 
affect  the  4th  and  5th  Sections  of  article  the  7th 

XX 

The  Members  of  the  Legislatures,  and  the  executive  and  judicial  officers  of 


APPENDIX  551 

the  United  States,  and  of  the  several  States,  shall  he  bound  by  oath  or  affirmation 
to  support  this  Constitution. 

But  no  religious  test  shall  ever  be  required  as  a  qualification  to  any  office  or 
public  trust  under  the  authority  of  the  United  States. 

XXI 

The  ratification  of  the  Conventions  of  nine  States  shall  be  sufficient  for 
organising  this  Constitution  between  the  said  States.. 

XXII 

This  Constitution  shall  be  laid  before  the  United  States  in  Congress  assembled, 
and  it  is  the  opinion  of  this  Convention  that  it  should  be  afterwards  submitted  to 
a  Convention  chosen  in  each  State,  under  the  recommendation  of  its  Legislature, 
in  order  to  receive  the  ratification  of  such  Convention. 

XXIII 

To  introduce  this  government,  it  is  the  opinion  of  this  Convention,  that  each 
assenting  Convention  should  notify  its  assent  and  ratification  to  the  United 
States  in  Congress  assembled;  that  Congress,  after  receiving  the  assent  and  ratifi- 
cation of  the  Conventions  of  nine  States,  should  appoint  and  publish  a  day,  as 
early  as  may  be,  and  appoint  a  place  for  commencing  proceedings  under  this  Con- 
stitution ;  that  after  such  publication,  the  Legislatures  of  the  several  States  should 
elect  Members  of  the  Senate,  and  direct  the  election  of  Members  of  the  House  of 
Representatives;  and  that  the  Members  of  the  Legislature  should  meet  at  the 
time  and  place  assigned  by  Congress  and  should,  as  soon  as  may  be,  after  their 
meeting,  proceed  to  execute  this  Constitution. 


552 


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IX.    THE   CONSTITUTION   AS   REPORTED   BY   THE   COMMITTEE 

ON  STYLE,  SEPTEMBER  12,   1787,  AND  AS  SIGNED, 

SEPTEMBER  17,  1787. 


Report  of  the  Committee  on  Style.1 

We,  the  people  of  the  United  States, 
in  order  to  form  a  more  perfect  union, 
to  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  de- 
fence, promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity,  do  ordain  and 
establish  this  Constitution  for  the 
United  States  of  America. 

Article  I 

Sect.  1.  ALL  legislative  powers 
herein  granted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Rep- 
resentatives. 

Sect.  2.  The  House  of  Representa- 
tives shall  be  composed  of  members 
chosen  every  second  year  by  the  people 
of  the  several  states,  and  the  electors  in 
each  state  shall  have  the  qualifications 
requisite  for  electors  of  the  most  nu- 
merous branch  of  the  state  legislature. 

(a)  No  person  shall  be  a  representa- 
tive who  shall  not  have  attained  to  the 
age  of  twenty-five  years,  and  been  seven 
years  a  citizen  of  the  United  States, 
and  who  shall  not,  when  elected,  be  an 
inhabitant  of  that  state  in  which  he 
shall  be  chosen. 

(b)  Representatives  and  direct  taxes 
shall  be  apportioned  among  the  several 
states  which  may  be  included  within 
this  Union,  according  to  their  respec- 
tive   numbers,    which    shall    be    deter- 


The  Constitution  as  signed.2 

We  the  People  of  the  United  States, 
in  Order  to  form  a  more  perfect  Union, 
establish  Justice,  insure  domestic  Tran- 
quility, provide  for  the  common  de- 
fence, promote  the  general  Welfare, 
and  secure  the  Blessings  of  Liberty  to 
ourselves  and  our  Posterity,  do  ordain 
and  establish  this  Constitution  for  the 
United  States  of  America. 

Article  I 

Section  1.  All  legislative  Powers 
herein  granted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Rep- 
resentatives. 

Section  2.  The  House  of  Repre- 
sentatives shall  be  composed  of  Mem- 
bers chosen  every  second  Year  by  the 
People  of  the  several  States,  and  the 
Electors  in  each  State  shall  have  the 
Qualifications  requisite  for  Electors  of 
the  most  numerous  Branch  of  the  State 
Legislature. 

No  Person  shall  be  a  Representative 
who  shall  not  have  attained  to  the  Age 
of  twenty  five  Years,  and  been  seven 
Years  a  Citizen  of  the  United  States, 
and  who  shall  not,  when  elected,  be  an 
Inhabitant  of  that  State  in  which  he 
shall  be  chosen. 

Representatives  and  direct  Taxes 
shall  be  apportioned  among  the  several 
States  which  may  be  included  within 
this  Union,  according  to  their  respec- 
tive   Numbers,    which    shall    be    deter- 


1  Documentary  History,  Vol.  iii,  pp.  720-733. 
-  ;' '  cumentary  History,  Vol.  ii,  pp.  3-20. 


APPENDIX 


553 


Report  of  the  Committee  on  Style. 

mined  by  adding  to  the  whole  number 
of  free  persons,  including  those  bound 
to  servitude  for  a  term  of  years,  and 
excluding  Indians  not  taxed,  three 
fifths  of  all  other  persons.  The  actual 
enumeration  shall  be  made  within  three 
years  after  the  first  meeting  of  the  Con- 
gress of  the  United  States,  and  within 
every  subsequent  term  of  ten  years,  in 
such  manner  as  they  shall  by  law  di- 
rect. The  number  of  representatives 
shall  not  exceed  one  for  every  forty 
thousand,  but  each  state  shall  have  at 
least  one  representative :  and  until  such 
enumeration  shall  be  made,  the  state  of 
New-Hampshire  shall  be  entitled  to 
chuse  three,  Massachusetts  eight, 
Rhode-Island  and  Providence  Planta- 
tions one,  Connecticut  five,  New-York 
six,  New-Jersey  four,  Pennsylvania 
eight,  Delaware  one,  Maryland  six, 
Virginia  ten,  North-Carolina  five, 
South-Carolina  five,  and  Georgia  three. 

(c)  When  vacancies  happen  in  the 
representation  from  any  state,  the  Ex- 
ecutive authority  thereof  shall  issue 
writs  of  election  to  fill  such  vacancies. 

(d)  The  House  of  Representatives 
shall  choose  their  Speaker  and  other 
officers ;  and  they  shall  have  the  sole 
power  of  impeachment. 

Sect.  3.  The  Senate  of  the  United 
States  shall  be  composed  of  two  sena- 
tors from  each  state,  chosen  by  the  leg- 
islature thereof,  for  six  years :  and  each 
senator  shall  have  one  vote. 

(a)  Immediately  after  they  shall  be 
assembled  in  consequence  of  the  first 
election,  they  shall  be  divided  as  equally 
as  may  be  into  three  classes.  The  seats 
of  the  senators  of  the  first  class  shall  be 
vacated  at  the  expiration  of  the  second 
year,  of  the  second  class  at  the  expira- 


The  Constitution  as  signed. 

mined  by  adding  to  the  whole  Number 
of  free  Persons,  including  those  bound 
to  Service  for  a  Term  of  Years,  and 
excluding  Indians  not  taxed,  three  fifths 
of  all  other  Persons.  The  actual  Enu- 
meration shall  be  made  within  three 
Years  after  the  first  Meeting  of  the 
Congress  of  the  United  States,  and 
within  every  subsequent  Term  of  ten 
Years,  in  such  Manner  as  they  shall  by 
Law  direct.  The  Number  of  Repre- 
sentatives shall  not  exceed  one  for  every 
thirty  Thousand,  but  each  State  shall 
have  at  Least  one  Representative ;  and 
until  such  enumeration  shall  be  made, 
the  State  of  New  Hampshire  shall  be 
entitled  to  chuse  three,  Massachusetts 
eight,  Rhode-Island  and  Providence 
Plantations  one,  Connecticut  five,  New- 
York  six,  New  Jersey  four,  Pennsyl- 
vania eight,  Delaware  one,  Maryland 
six,  Virginia  ten,  North  Carolina  five, 
South  Carolina  five,  and  Georgia  three. 

When  vacancies  happen  in  the  Rep- 
resentation from  any  State,  the  Execu- 
tive Authority  thereof  shall  issue  Writs 
of  Election  to  fill  such  Vacancies. 

The  House  of  Representatives  shall 
chuse  their  Speaker  and  other  Officers ; 
and  shall  have  the  sole  Power  of  Im- 
peachment. 

Section  3.  The  Senate  of  the  United 
States  shall  be  composed  of  two  Sena- 
tors from  each  State,  chosen  by  the  Leg- 
islature thereof,  for  six  Years  :  and  each 
Senator  shall  have  one  Vote. 

Immediately  after  they  shall  be  as- 
sembled in  Consequence  of  the  first 
Election,  they  shall  be  divided  as  equally 
as  may  be  into  three  Classes.  The 
Seats  of  the  Senators  of  the  first  Class 
shall  be  vacated  at  the  Expiration  of 
the  second  Year,  of  the  second  class  at 


554 


THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL    ORGANIZATION 


Report  of  the  Committee  on  Style. 

tion  of  the  fourth  year,  and  of  the  third 
class  at  the  expiration  of  the  sixth  year, 
so  that  one-third  may  be  chosen  every 
second  year:  and  if  vacancies  happen 
by  resignation,  or  otherwise,  during  the 
recess  of  the  Legislature  of  any  state, 
the  Executive  thereof  may  make  tem- 
porary appointments  until  the  next 
meeting  of  the  Legislature. 


(b)  No  person  shall  be  a  senator  who 
shall  not  have  attained  to  the  age  of 
thirty  years,  and  been  nine  years  a  citi- 
zen of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of 
that  state  for  which  he  shall  be  chosen. 

(c)  The  Vice-President  of  the  United 
States  shall  be,  ex  officio,  President  of 
the  senate,  but  shall  have  no  vote,  un- 
less they  be  equally  divided. 

(d)  The  Senate  shall  choose  their 
other  officers,  and  also  a  President  pro 
tempore,  in  the  absence  of  the  Vice- 
President,  or  when  he  shall  exercise  the 
office  of  President  of  the  United  States. 

(e)  The  Senate  shall  have  the  sole 
power  to  try  all  impeachments.  When 
sitting  for  that  purpose,  they  shall  be  on 
oath.  When  the  President  of  the  United 
States  is  tried,  the  Chief  Justice  shall 
preside :  And  no  person  shall  be  con- 
victed without  the  concurrence  of  two- 
thirds  of  the  members  present. 

(f)  Judgment  in  cases  of  impeach- 
ment shall  not  extend  further  than  to  re- 
moval from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust 
or  profit  under  the  United  States :  but 
the  party  convicted  shall  nevertheless  be 


The  Constitution  as  signed. 

the  Expiration  of  the  fourth  Year,  and 
of  the  third  Class  at  the  Expiration  of 
the  sixth  Year,  so  that  one  third  may 
be  chosen  every  second  Year;  and  if 
Vacancies  happen  by  Resignation,  or 
otherwise,  during  the  Recess  of  the 
Legislature  of  any  State,  the  Executive 
thereof  may  make  temporary  Appoint- 
ments until  the  next  Meeting  of  the 
Legislature,  which  shall  then  fill  such 
Vacancies. 

No  Person  shall  be  a  Senator  who 
shall  not  have  attained  to  the  Age  of 
thirty  Years,  and  been  nine  Years  a 
Citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  Inhabitant 
of  that  State  for  which  he  shall  be 
chosen. 

The  Vice  President  of  the  United 
States  shall  be  President  of  the  Senate, 
but  shall  have  no  Vote,  unless  they  be 
equally  divided. 

The  Senate  shall  chuse  their  other 
Officers,  and  also  a  President  pro  tem- 
pore, in  the  Absence  of  the  Vice  Presi- 
dent, or  when  he  shall  exercise  the  Of- 
fice of  President  of  the  United  States. 

The  Senate  shall  have  the  sole  Power 
to  try  all  Impeachments.  When  sitting 
for  that  Purpose,  they  shall  be  on  Oath 
or  Affirmation.  When  the  President  of 
the  United  States  is  tried,  the  Chief 
Justice  shall  preside:  And  no  Person 
shall  be  convicted  without  the  Concur- 
rence of  two  thirds  of  the  Members 
present. 

Judgment  in  Cases  of  Impeachment 
shall  not  extend  further  than  to  removal 
from  Office,  and  disqualification  to  hold 
and  enjoy  any  Office  of  honor,  Trust 
or  Profit  under  the  United  States:  but 
the   Party  convicted   shall  nevertheless 


APPENDIX 


555 


Report  of  the  Committee  on  Style. 

liable  and  subject  to  indictment,  trial, 
judgment  and  punishment,  according  to 
law. 

Sect.  4.  The  times,  places  and  man- 
ner of  holding  elections  for  senators 
and  representatives,  shall  be  prescribed 
in  each  state  by  the  legislature  thereof : 
but  the  Congress  may  at  any  time  by 
law  make  or  alter  such  regulations. 


(a)  The  Congress  shall  assemble  at 
least  once  in  every  year,  and  such  meet- 
ing shall  be  on  the  first  Monday  in  De- 
cember, unless  they  shall  by  law  appoint 
a  different  day. 

Sect.  5.  Each  House  shall  be  the 
judge  of  the  elections,  returns  and  qual- 
ifications of  its  own  members,  and  a 
majority  of  each  shall  constitute  a 
quorum  to  do  business :  but  a  smaller 
number  may  adjourn  from  day  to  day, 
and  may  be  authorized  to  compel  the 
attendance  of  absent  members,  in  such 
manner,  and  under  such  penalties  as 
each  house  may  provide. 

(a)  Each  house  may  determine  the 
rules  of  its  proceedings ;  punish  its 
members  for  disorderly  behaviour,  and, 
with  the  concurrence  of  two-thirds,  ex- 
pel a  member. 

(t>)  Each  house  shall  keep  a  journal 
of  its  proceedings,  and  from  time  to  time 
publish  the  same,  excepting  such  parts 
as  may  in  their  judgment  require  se- 
crecy ;  and  the  yeas  and  nays  of  the 
members  of  either  house  on  any  ques- 
tion shall,  at  the  desire  of  one-fifth  of 
those  present,  be  entered  on  the  jour- 
nal. 

(c)  Neither  house,  during  the  session 
of  Congress,  shall,  without  the  consent 
of   the   other,   adjourn    for   more   than 


The  Constitution  as  signed. 

be  liable  and  subject  to  Indictment, 
Trial,  Judgment  and  Punishment,  ac- 
cording to  Law. 

Section  4.  The  Times,  Places  and 
Manner  of  holding  Elections  for  Sena- 
tors and  Representatives,  shall  be  pre- 
scribed in  each  State  by  the  Legislature 
thereof ;  but  the  Congress  may  at  any 
time  by  Law  make  or  alter  such  Regu- 
lations, except  as  to  the  Places  of  chus- 
ing  Senators. 

The  Congress  shall  assemble  at  least 
once  in  every  Year,  and  such  Meeting 
shall  be  on  the  first  Monday  in  Decem- 
ber, unless  they  shall  by  Law  appoint  a 
different  Day. 

Section  5.  Each  House  shall  be  the 
Judge  of  the  Elections,  Returns  and 
Qualifications  of  its  own  Members,  and 
a  Majority  of  each  shall  constitute  a 
Quorum  to  do  Business ;  but  a  smaller 
Number  may  adjourn  from  day  to  day, 
and  may  be  authorized  to  compel  the 
Attendance  of  absent  Members,  in  such 
Manner,  and  under  such  Penalties  as 
each  House  may  provide. 

Each  House  may  determine  the  Rules 
of  its  Proceedings,  punish  its  Members 
for  disorderly  Behaviour,  and,  with  the 
Concurrence  of  two  thirds,  expel  a 
Member. 

Each  House  shall  keep  a  Journal  of 
its  Proceedings,  and  from  time  to  time 
publish  the  same,  excepting  such  Parts 
as  may  in  their  Judgment  require  Se- 
crecy; and  the  Yeas  and  Nays  of  the 
Members  of  either  House  on  any  ques- 
tion shall,  at  the  Desire  of  one  fifth  of 
those  Present,  be  entered  on  the  Jour- 
nal. 

Neither  House,  during  the  Session 
of  Congress,  shall,  without  the  Consent 
of  the  other,  adjourn  for  more  than 


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Report  of  the  Committee  on  Style. 

three  days,  nor  to  any  other  place  than 
that  in  which  the  two  houses  shall  be 
sitting. 

Sect.  6.  The  senators  and  repre- 
sentatives shall  receive  a  compensation 
for  their  services,  to  be  ascertained  by 
law  and  paid  out  of  the  treasury  of  the 
United  States.  They  shail  in  all  cases, 
except  treason,  felony  and  breach  of  the 
peace,  be  privileged  from  arrest  during 
their  attendance  at  the  session  of  their 
respective  houses,  and  in  going  to  and 
returning  from  the  same  ;  and  for  any 
speech  or  debate  in  either  house,  they 
shall  not  be  questioned  in  any  other 
place. 

(a)  No  senator  or  representative 
shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  office 
under  the  authority  of  the  United 
States,  which  shall  have  been  created, 
or  the  emoluments  whereof  shall  have 
been  encreased  during  such  time ;  and 
no  person  holding  any  office  under  the 
United  States,  shall  be  a  member  of 
either  house  during  his  continuance  in 
office. 

Sect.  7.  The  enacting  stile  of  the 
laws  shall  be,  "  Be  it  enacted  by  the 
senators  and  representatives  in  Con- 
gress assembled." 

(a)  All  bills  for  raising  revenue  shall 
originate  in  the  house  of  representa- 
tives :  but  the  senate  may  propose  or 
concur  with  amendments  as  on  other 
bills. 

(b)  Every  bill  which  shall  have  passed 
the  house  of  representatives  and  the 
senate,  shall,  before  it  become  a  law,  be 
presented  to  the  president  of  the  United 
States.  If  he  approve  he  shall  sign  it, 
but  if  not  he  shall  return  it,  with  his 
objections   to   that   house    in    which    it 


The  Constitution  as  signed. 

three  days,  nor  to  any  other  Place  than 
that  in  which  the  two  Houses  shall  be 
sitting. 

Section  6.  The  Senators  and  Repre- 
sentatives shall  receive  a  Compensation 
for  their  Services,  to  be  ascertained  by 
Law,  and  paid  out  of  the  Treasury  of 
the  United  States.  They  shall  in  all 
Cases,  except  Treason,  Felony  and 
Breach  of  the  Peace,  be  privileged  from 
Arrest  during  their  Attendance  at  the 
Session  of  their  respective  Houses,  and 
in  going  to  and  returning  from  the 
same ;  and  for  any  Speech  or  Debate 
in  either  House,  they  shall  not  be  ques- 
tioned in  any  other  Place. 

No  Senator  or  Representative  shall, 
during  the  Time  for  which  he  was 
elected,  be  appointed  to  any  civil  Office 
under  the  Authority  of  the  United 
States,  which  shall  have  been  created, 
or  the  Emoluments  whereof  shall  have 
been  encreased  during  such  time,  and 
no  Person  holding  any  Office  under  the 
United  States,  shall  be  a  Member  of 
either  House  during  his  Continuance  in 
Office. 

Section  7. 


All  Bills  for  raising  Revenue  shall 
originate  in  the  House  of  Representa- 
tives ;  but  the  Senate  may  propose  or 
concur  with  Amendments  as  on  other 
Bills. 

Every  Bill  which  shall  have  passed 
the  House  of  Representatives  and  the 
Senate,  shall,  before  it  become  a  Law, 
be  presented  to  the  President  of  the 
United  States ;  If  he  approve  he  shall 
sign  it,  but  if  not  he  shall  return  it, 
with  his   Objections  to  that  House   in 


APPENDIX 


557 


Report  of  the  Committee  on  Style. 

shall  have  originated,  who  shall  enter 
the  objections  at  large  on  their  journal, 
and  proceed  to  reconsider  it.  If  after 
such  reconsideration  two-thirds  of  that 
house  shall  agree  to  pass  the  bill,  it 
shall  be  sent,  together  with  the  objec- 
tions, to  the  other  house,  by  which  it 
shall  likewise  be  reconsidered,  and  if 
approved  by  two-thirds  of  that  house,  it 
shall  become  a  law.  But  in  all  such 
cases  the  votes  of  both  houses  shall  be 
determined  by  yeas  and  nays,  and  the 
names  of  the  persons  voting  for  and 
against  the  bill  shall  be  entered  on  the 
journal  of  each  house  respectively.  If 
any  bill  shall  not  be  returned  by  the 
President  within  ten  days  (Sundays  ex- 
cepted) after  it  shall  have  been  pre- 
sented to  him,  the  same  shall  be  a  law, 
in  like  manner  as  if  he  had  signed  it, 
unless  the  Congress  by  their  adjourn- 
ment prevent  its  return,  in  which  case 
it  shall  not  be  a  law. 

(c)  Every  order,  resolution,  or  vote  to 
which  the  concurrence  of  the  Senate 
and  House  of  Representatives  may  be 
necessary  (except  on  a  question  of  ad- 
journment) shall  be  presented  to  the 
President  of  the  United  States ;  and  be- 
fore the  same  shall  take  effect,  shall  be 
approved  by  him,  or,  being  disapproved 
by  him,  shall  be  repassed  by  three- 
fourths  of  the  Senate  and  House  of 
Representatives,  according  to  the  rules 
and  limitations  prescribed  in  the  case 
of  a  bill. 

Sect.  8.  The  Congress  may  by  joint 
ballot  appoint  a  treasurer.  They  shall 
have  power 

(a)  To  lay  and  collect  taxes,  duties, 
imposts  and  excises ;  to  pay  the  debts 
and  provide  for  the  common  defence  and 
general  welfare  of  the  United   States. 


The  Constitution  as  signed. 

which  it  shall  have  originated,  who 
shall  enter  the  Objections  at  large  on 
their  Journal,  and  proceed  to  reconsider 
it.  If  after  such  Reconsideration  two 
thirds  of  that  House  shall  agree  to  pass 
the  Bill,  it  shall  be  sent,  together  with 
the  Objections,  to  the  other  House,  by 
which  it  shall  likewise  be  reconsidered, 
and  if  approved  by  two  thirds  of  that 
House,  it  shall  become  a  law.  But  in 
all  such  Cases  the  Votes  of  both  Houses 
shall  be  determined  by  yeas  and  Nays, 
and  the  Names  of  the  Persons  voting 
for  and  against  the  Bill  shall  be  entered 
on  the  Journal  of  each  House  respec- 
tively. If  any  Bill  shall  not  be  returned 
by  the  President  within  ten  Days  ( Sun- 
days excepted)  after  it  shall  have  been 
presented  to  him,  the  Same  shall  be  a 
Law,  in  like  Manner  as  if  he  had  signed 
it,  unless  the  Congress  by  their  Ad- 
journment prevent  its  Return,  in  which 
Case  it  shall  not  be  a  Law. 

Every  Order,  Resolution,  or  Vote  to 
which  the  Concurrence  of  the  Senate 
and  House  of  Representatives  may  be 
necessary  (except  on  a  question  of  Ad- 
journment) shall  be  presented  to  the 
President  of  the  United  States ;  and  be- 
fore the  Same  shall  take  Effect,  shall 
be  approved  by  him,  or  being  disap- 
proved by  him,  shall  be  repassed  by 
two  thirds  of  the  Senate  and  House  of 
Representatives,  according  to  the  Rules 
and  Limitations  prescribed  in  the  Case 
of  a  Bill. 

Section  8.  The  Congress  shall  have 
Power 

To  lay  and  collect  Taxes,  Duties, 
Imposts  and  Excises,  to  pay  the  Debts 
and  provide  for  the  common  Defence 
and    general    Welfare    of    the    United 


558 


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(b)  To  borrow  money  on  the  credit 
of  the  United  States. 

(c)  To  regulate  commerce  with  for- 
eign nations,  among  the  several  states, 
and  with  the  Indian  tribes. 

(d)  To  establish  an  uniform  rule  of 
naturalization,  and  uniform  laws  on  the 
subject  of  bankruptcies  throughout  the 
United  States. 

(e)  To  coin  money,  regulate  the  value 
thereof,  and  of  foreign  coin,  and  fix 
the  standard  of  weights  and  measures. 

(f)  To  provide  for  the  punishment  of 
counterfeiting  the  securities  and  cur- 
rent coin  of  the  United  States. 

(g)  To  establish  post  offices  and  post 
roads. 

(i)  To  promote  the  progress  of  science 
and  useful  arts,  by  securing  for  limited 
times  to  authors  and  inventors  the  ex- 
clusive right  to  their  respective  writings 
and  discoveries. 

(J)  To  constitute  tribunals  inferior  to 
the  supreme  court. 

(k)  To  define  and  punish  piracies  and 
felonies  committed  on  the  high  seas, 
and  punish  offences  against  the  law  of 
nations. 

(1)  To  declare  war,  grant  letters  of 
marque  and  reprisal,  and  make  rules 
concerning  captures  on  land  and  water. 

(m)  To  raise  and  support  armies  :  but 
no  appropriations  of  money  to  that  use 
shall  be  for  a  longer  term  than  two 
years. 

(n)  To  provide  and  maintain  a  navy. 

(o)  To  make  rules  for  the  govern- 
ment and  regulation  of  the  land  and 
naval  forces. 


The  Constitution  as  signed. 

States ;  but  all  Duties,  Imposts  and  Ex- 
cises shall  be  uniform  throughout  the 
United  States; 

To  borrow  Money  on  the  credit  of 
the  United  States ; 

To  regulate  Commerce  with  foreign 
Nations,  and  among  the  several  States, 
and  with  the  Indian  Tribes ; 

To  establish  an  uniform  Rule  of  Nat- 
uralization, and  uniform  Laws  on  the 
subject  of  Bankruptcies  throughout  the 
United  States ; 

To  coin  Money,  regulate  the  Value 
thereof,  and  of  foreign  Coin,  and  fix 
the  Standard  of  Weights  and  Measures  ; 

To  provide  for  the  Punishment  of 
counterfeiting  the  Securities  and  cur- 
rent Coin  of  the  United  States ; 

To  establish  Post  Offices  and  post 
Roads ; 

To  promote  the  Progress  of  Science 
and  useful  Arts,  by  securing  for  lim- 
ited Times  to  Authors  and  Inventors 
the  exclusive  Right  to  their  respective 
Writings  and  Discoveries ; 

To  constitute  Tribunals  inferior  to 
the  supreme  Court ; 

To  define  and  punish  Piracies  and 
Felonies  committed  on  the  high  Seas, 
and  Offences  against  the  Law  of  Na- 
tions ; 

To  declare  War,  grant  Letters  of 
Marque  and  Reprisal,  and  make  Rules 
concerning  Captures  on  Land  and 
Water; 

To  raise  and  support  Armies,  but  no 
Appropriation  of  Money  to  that  Use 
shall  be  for  a  longer  Term  than  two 
Years  ; 

To  provide  and  maintain  a  Navy  ; 

To  make  Rules  for  the  Government 
and  Regulation  of  the  land  and  naval 
Forces ; 


APPEN'DIX 


559 


Report  of  the  Committee  on  Style. 

(p)  To  provide  for  calling  forth  the 
militia  to  execute  the  laws  of  the  union, 
suppress  insurrections  and  repel  inva- 
sions. 

(q)  To  provide  for  organizing,  arm- 
ing and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be 
employed  in  the  service  of  the  United 
States,  reserving  to  the  States  respec- 
tively, the  appointment  of  the  officers, 
and  the  authority  of  training  the  militia 
according  to  the  discipline  prescribed 
by  Congress. 

(r)  To  exercise  exclusive  legislation  in 
all  cases  whatsoever,  over  such  district 
(not  exceeding  ten  miles  square)  as 
may,  by  cession  of  particular  States,  and 
the  acceptance  of  Congress,  become  the 
seat  of  the  government  of  the  United 
States,  and  to  exercise  like  authority 
over  all  places  purchased  by  the  consent 
of  the  legislature  of  the  state  in  which 
the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dock-yards, 
and  other  needful  buildings  —  And 

(s)  To  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all 
other  powers  vested  by  this  constitu- 
tion in  the  government  of  the  United 
States,  or  in  any  department  or  officer 
thereof. 

Sect.  9.  The  migration  or  importa- 
tion of  such  persons  as  the  several  states 
now  existing  shall  think  proper  to  ad- 
mit, shall  not  be  prohibited  by  the  Con- 
gress prior  to  the  year  one  thousand 
eight  hundred  and  eight,  but  a  tax  or 
duty  may  be  imposed  on  such  importa- 
tion, not  exceeding  ten  dollars  for  each 
person. 

(a)   The    privilege    of    the    writ    of 


The  Constitution  as  signed. 

To  provide  for  calling  forth  the  Mi- 
litia to  execute  the  Laws  of  the  Union, 
suppress  Insurrections  and  repel  Inva- 
sions ; 

To  provide  for  organizing,  arming, 
and  disciplining,  the  Militia,  and  for 
governing  such  Part  of  them  as  may  be 
employed  in  the  Service  of  the  United 
States,  reserving  to  the  States  respec- 
tively, the  Appointment  of  the  Officers, 
and  the  Authority  of  training  the  Mi- 
litia according  to  the  discipline  pre- 
scribed by  Congress ; 

To  exercise  exclusive  Legislation  in 
all  Cases  whatsoever,  over  such  District 
(not  exceeding  ten  Miles  square)  as 
may,  by  Cession  of  particular  States, 
and  the  Acceptance  of  Congress,  be- 
come the  Seat  of  the  Government  of 
the  United  States,  and  to  exercise  like 
Authority  over  all  Places  purchased  by 
the  Consent  of  the  Legislature  of  the 
State  in  which  the  Same  shall  be,  for 
the  Erection  of  Forts,  Magazines,  Ar- 
senals, dock- Yards,  and  other  needful 
Buildings  ;  — ■  And 

To  make  all  Laws  which  shall  be  nec- 
essary and  proper  for  carrying  into 
Execution  the  foregoing  Powers,  and 
all  other  Powers  vested  by  this  Consti- 
tution in  the  Government  of  the  United 
States,  or  in  any  Department  or  Officer 
thereof. 

Section  9.  The  Migration  or  Im- 
portation of  such  Persons  as  any  of  the 
States  now  existing  shall  think  proper 
to  admit,  shall  not  be  prohibited  by  the 
Congress  prior  to  the  Year  one  thousand 
eight  hundred  and  eight,  but  a  Tax  or 
duty  may  be  imposed  on  such  Importa- 
tion, not  exceeding  ten  dollars  for  each 
Person. 

The  Privilege  of  the  Writ  of  Habeas 


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habeas  corpus  shall  not  be  suspended, 
unless  when  in  cases  of  rebellion  or  in- 
vasion the  public  safety  may  require  it. 

(b)  No  bill  of  attainder  shall  be 
passed,  nor  any  ex  post  facto  law. 

(c)  No  capitation  tax  shall  be  laid, 
unless  in  proportion  to  the  census  herein 
before  directed  to  be  taken. 

(d)  No  tax  or  duty  shall  be  laid  on 
articles  exported  from  any  state. 


(e)  No  money  shall  be  drawn  from 
the  treasury,  but  in  consequence  of  ap- 
propriations made  by  law. 


(f )  No  title  of  nobility  shall  be  granted 
by  the  United  States.  And  no  person 
holding  any  office  of  profit  or  trust  un- 
der them,  shall,  without  the  consent  of 
the  Congress,  accept  of  any  present, 
emolument,  office,  or  title,  of  any  kind 
whatever,  from  any  king,  prince,  or 
foreign  state. 

Sect.  10.  No  state  shall  coin  money, 
nor  emit  bills  of  credit,  nor  make  any 
thing  but  gold  or  silver  coin  a  tender 
in  payment  of  debts,  nor  pass  any  bill 
of  attainder,  nor  ex  post  facto  laws. 
nor  laws  altering  or  impairing  the  obli- 
gation of  contracts ;  nor  grant  letters 
of  marque  and  reprisal,  nor  enter  into 
any  treaty,  alliance,  or  confederation, 
nor  grant  any  title  of  nobility. 

(a)  No  state  shall,  without  the  consent 
of  Congress,  lay  imposts  or  duties  on 


The  Constitution  as  signed. 

Corpus  shall  not  be  suspended,  unless 
when  in  Cases  of  Rebellion  or  Invasion 
the  public  Safety  may  require  it. 

No  bill  of  Attainder  or  ex  post  facto 
Law  shall  be  passed. 

No  Capitation,  or  other  direct,  Tax 
shall  be  laid,  unless  in  Proportion  to 
the  Census  or  Enumeration  herein  be- 
fore directed  to  be  taken. 

No  Tax  or  Duty  shall  be  laid  on  Ar- 
ticles exported  from  any  State. 

No  Preference  shall  be  given  by  any 
Regulation  of  Commerce  or  Revenue  to 
the  Ports  of  one  State  over  those  of 
another:  nor  shall  Vessels  bound  to,  or 
from,  one  State,  be  obliged  to  enter, 
clear,  or  pay  Duties  in  another. 

No  Money  shall  be  drawn  from  the 
Treasury,  but  in  Consequence  of  Appro- 
priations made  by  Law ;  and  a  regular 
Statement  and  Account  of  the  Receipts 
and  Expenditures  of  all  public  Money 
shall  be  published  from  time  to  time. 

No  Title  of  Nobility  shall  be  granted 
by  the  United  States :  And  no  Person 
holding  any  Office  of  Profit  or  Trust 
under  them,  shall,  without  the  Consent 
of  the  Congress,  accept  of  any  present, 
Emolument,  Office,  or  Title,  of  any  kind 
whatever,  from  any  King,  Prince,  or 
foreign   State. 

Section  10.  No  State  shall  enter  into 
any  Treaty,  Alliance,  or  Confederation ; 
grant  Letters  of  Marque  and  Reprisal ; 
coin  Money ;  emit  Bills  of  Credit ;  make 
any  Thing  but  gold  and  silver  Coin  a 
Tender  in  Payment  of  Debts;  pass  any 
Bill  of  Attainder,  ex  post  facto  Law,  or 
Law  impairing  the  Obligation  of  Con- 
tracts, or  grant  any  Title  of  Nobility. 

No  State  shall,  without  the  Consent 
of   the   Congress,   lay   any   Imposts   or 


APPENDIX 


561 


Report  of  the  Committee  on  Style. 

imports  or  exports,  nor  with  such  con- 
sent, but  to  the  use  of  the  treasury  of 
the  United  States:  nor  keep  troops 
nor  ships  of  war  in  time  of  peace,  nor 
enter  into  any  agreement  or  compact 
with  another  state,  nor  with  any  for- 
eign power.  Nor  engage  in  any  war, 
unless  it  shall  be  actually  invaded  by 
enemies,  or  the  danger  of  invasion  be  so 
iminent,  as  not  to  admit  of  delay  until 
the  Congress  can  be  consulted. 


II 

Sect.  1.  The  executive  power  shall 
be  vested  in  a  president  of  the  United 
States  of  America.  He  shall  hold  his 
office  during  the  term  of  four  years, 
and,  altogether  with  the  vice-president, 
chosen  for  the  same  term,  be  elected  in 
the   following  manner: 

(a)  Each  state  shall  appoint,  in  such 
manner  as  the  legislature  thereof  may 
direct,  a  number  of  electors,  equal  to 
the  whole  number  of  senators  and  rep- 
resentatives to  which  the  state  may  be 
entitled  in  Congress :  but  no  senator  or 
representative  shall  be  appointed  an 
elector,  nor  any  person  holding  an  of- 
fice of  trust  or  profit  under  the  United 
States. 

(b)  The  electors  shall  meet  in  their 
respective  states,  and  vote  by  ballot  for 
two  persons,  of  whom  one  at  least  shall 
not  be  an  inhabitant  of  the  same  state 
with  themselves.  And  they  shall  make 
a  list  of  all  the  persons  voted  for,  and 
of  the  number  of  votes  for  each ;  which 


The  Constitution  as  signed. 

Duties  on  Imports  or  Exports,  except 
what  may  be  absolutely  necessary  for 
executing  it's  inspection  Laws :  and  the 
net  Produce  of  all  Duties  and  Imposts, 
laid  by  any  State  on  Imports  or  Ex- 
ports, shall  be  for  the  Use  of  the  Treas- 
ury of  the  United  States ;  and  all  such 
Laws  shall  be  subject  to  the  Revision 
and  Controul  of  the  Congress. 

No  State  shall,  without  the  Consent 
of  Congress,  lay  any  Duty  of  Tonnage, 
keep  Troops,  or  Ships  of  War  in  time 
of  Peace,  enter  into  any  Agreement  or 
Compact  with  another  State,  or  with  a 
foreign  Power,  or  engage  in  War,  un- 
less actually  invaded,  or  in  such  immi- 
nent Danger  as  will  not  admit  of  delay. 

Article  II 

Section  1.  The  executive  Power 
shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall 
hold  his  Office  during  the  Term  of  four 
Years,  and,  together  with  the  Vice  Pres-" 
ident,  chosen  for  the  same  Term,  be 
elected,  as  follows 

Each  State  shall  appoint,  in  such 
Manner  as  the  Legislature  thereof  may 
direct,  a  Number  of  Electors,  equal  to 
the  whole  Number  of  Senators  and  Rep- 
resentatives to  which  the  State  may  be 
entitled  in  the  Congress  :  but  no  Senator 
or  Representative,  or  Person  holding  an 
Office  of  Trust  or  Profit  under  the 
United  States,  shall  be  appointed  an 
Elector. 

The  Electors  shall  meet  in  their  re- 
spective States,  and  vote  by  Ballot  for 
two  Persons,  of  whom  one  at  least  shall 
not  be  an  Inhabitant  of  the  same  State 
with  themselves.  And  they  shall  make 
a  Lisi  of  all  the  Persons  voted  for,  and 
of  the  Number  of  Votes  for  each ;  which 


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list  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  gen- 
eral government,  directed  to  the  presi- 
dent of  the  senate.  The  president  of 
the  senate  shall  in  the  presence  of  the 
senate  and  house  of  representatives 
open  all  the  certificates,  and  the  votes 
shall  then  be  counted.  The  person 
having  the  greatest  number  of  votes 
shall  be  the  president,  if  such  number 
be  a  majority  of  the  whole  number  of 
electors  appointed;  and  if  there  be 
more  than  one  who  have  such  major- 
ity, and  have  an  equal  number  of  votes, 
then  the  house  of  representatives  shall 
immediately  chuse  by  ballot  one  of 
them  for  president ;  and  if  no  person 
have  a  majority,  then  from  the  five 
highest  on  the  list  the  said  house  shall 
in  like  manner  choose  the  president. 
But  in  choosing  the  president,  the  votes 
shall  be  taken  by  states  and  not  per 
capita,  the  representation  from  each 
state  having  one  vote.  A  quorum  for 
this  purpose  shall  consist  of  a  member 
or  members  from  two-thirds  of  the 
states,  and  a  majority  of  all  the  states 
shall  be  necessary  to  a  choice.  In  every 
case,  after  the  choice  of  the  president 
by  the  representatives,  the  person  hav- 
ing the  greatest  number  of  votes  of  the 
electors  shall  be  the  vice-president. 
But  if  there  should  remain  two  or  more 
who  have  equal  votes,  the  senate  shall 
choose  from  them  by  ballot  the  vice- 
president. 

(c)  The  Congress  may  determine  the 
time  of  chusing  the  electors,  and  the 
time  in  which  they  shall  give  their 
votes ;  but  the  election  shall  be  on  the 
same  day  throughout  the  United  States. 

(d)  No  person  except  a  natural  born 
citizen,  or  a  citizen  of  the  United  States, 


The  Constitution  as  signed. 

List  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  Seat  of  the  Gov- 
ernment of  the  United  States,  directed 
to  the  President  of  the  Senate.  The 
President  of  the  Senate  shall,  in  the 
Presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  Certifi- 
cates, and  the  Votes  shall  then  be 
counted.  The  Person  having  the  great- 
est Number  of  Votes  shall  be  the  Presi- 
dent, if  such  Number  be  a  Majority  of 
the  whole  Number  of  Electors  ap- 
pointed; and  if  there  be  more  than  one 
who  have  such  Majority,  and  have  an 
equal  Number  of  Votes,  then  the  House 
of  Representatives  shall  immediately 
chuse  by  Ballot  one  of  them  for  Presi- 
dent ;  and  if  no  Person  have  a  Majority, 
then  from  the  five  highest  on  the  List 
the  said  House  shall  in  like  Manner 
chuse  the  President.  But  in  chusing  the 
President,  the  Votes  shall  be  taken  by 
States,  the  Representation  from  each 
State  having  one  Vote ;  A  quorum  for 
this  Purpose  shall  consist  of  a  Member 
or  Members  from  two  thirds  of  the 
States,  and  a  Majority  of  all  the  States 
shall  be  necessary  to  a  Choice.  In 
every  Case,  after  the  Choice  of  the 
President,  the  Person  having  the  great- 
est Number  of  Votes  of  the  Electors 
shall  be  the  Vice  President.  But  if 
there  should  remain  two  or  more  who 
have  equal  Votes,  the  Senate  shall  chuse 
from  them  by  Ballot  the  Vice  President. 

The  Congress  may  determine  the 
Time  of  chusing  the  Electors,  and  the 
Day  on  which  they  shall  give  their 
Votes ;  which  Day  shall  be  the  same 
throughout  the  United  States. 

No  Person  except  a  natural  born  Citi- 
zen, or  a  Citizen  of  the  United  States, 


APPENDIX 


563 


Report  of  the  Committee  on  Style. 

at  the  time  of  the  adoption  of  this  con- 
stitution, shall  be  eligible  to  the  office  of 
president ;  neither  shall  any  person  be 
eligible  to  that  office  who  shall  not  have 
attained  to  the  age  of  thirty-five  years, 
and  been  fourteen  years  a  resident 
within  the  United  States. 

(e)  In  case  of  the  removal  of  the 
president  from  office,  or  of  his  death, 
resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the 
same  shall  devolve  on  the  vice-presi- 
dent, and  the  Congress  may  by  law 
provide  for  the  case  of  removal,  death, 
resignation  or  inability,  both  of  the 
president  and  vice-president,  declaring 
what  officer  shall  then  act  as  president, 
and  such  officer  shall  act  accordingly, 
until  the  disability  be  removed,  or  the 
period  for  chusing  another  president 
arrive. 

(0  The  president  shall,  at  stated 
times,  receive  a  fixed  compensation  for 
his  services,  which  shall  neither  be  en- 
creased  nor  diminished  during  the  pe- 
riod for  which  he  shall  have  been 
elected. 


(g)  Before  he  enter  on  the  execution 
of  his  office,  he  shall  take  the  following 
oath  or  affirmation :  "  I  -,  do  sol- 
emnly swear  (or  affirm)  that  I  will 
faithfully  execute  the  office  of  presi- 
dent of  the  United  States,  and  will  to 
the  best  of  my  judgment  and  power, 
preserve,  protect  and  defend  the  con- 
stitution of  the  United  States." 

Sect.  2.  The  president  shall  be 
commander  in  chief  of  the  army  and 
navy  of  the  United  States,  and  of  the 
militia  of  the  several  States:  he  may 
require  the  opinion,  in  writing,  of  the 


The  Constitution  as  signe'd. 

at  the  time  of  the  Adoption  of  this  Con- 
stitution, shall  be  eligible  to  the  Office 
of  President ;  neither  shall  any  Person 
be  eligible  to  that  Office  who  shall  not 
have  attained  to  the  Age  of  thirty  five 
Years,  and  been  fourteen  Years  a  Resi- 
dent within  the  United  States. 

In  Case  of  the  Removal  of  the  Presi- 
dent from  Office,  or  of  his  Death,  Res- 
ignation, or  Inability  to  discharge  the 
Powers  and  Duties  of  the  said  Office, 
the  Same  shall  devolve  on  the  Vice 
President,  and  the  Congress  may  by 
Law  provide  for  the  Case  of  Removal, 
Death,  Resignation  or  Inability,  both 
of  the  President  and  Vice  President, 
declaring  what  Officer  shall  then  act  as 
President,  and  such  Officer  shall  act  ac- 
cordingly, until  the  Disability  be  re- 
moved, or  a  President  shall  be  elected. 

The  President  shall,  at  stated  Times, 
receive  for  his  Services,  a  Compensa- 
tion, which  shall  neither  be  encreased 
nor  diminished  during  the  Period  for 
which  he  shall  have  been  elected,  and  he 
shall  not  receive  within  that  Period  any 
other  Emolument  from  the  United 
States,  or  any  of  them. 

Before  he  enter  on  the  Execution  of 
his  Office,  he  shall  take  the  following 
Oath  or  Affirmation  :  — "  I  do  solemnly 
swear  (or  affirm)  that  I  will  faithfully 
execute  the  Office  of  President  of  the 
United  States,  and  will  to  the  best  of 
my  Ability,  preserve,  protect  and  de- 
fend the  Constitution  of  the  United 
States." 

Section  2.  The  President  shall  be 
Commander  in  Chief  of  the  Army  and 
Navy  of  the  United  States  and  of  the 
Militia  of  the  several  States,  when 
called   into   the  actual   Service  of  the 


564 


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Report  of  the  Committee  on  Style. 

principal  officer  in  each  of  the  execu- 
tive departments,  upon  any  subject  re- 
lating to  the  duties  of  their  respective 
offices,  when  called  into  the  actual  serv- 
ice of  the  United  States,  and  he  shall 
have  power  to  grant  reprieves  and  par- 
dons for  offences  against  the  United 
States,  except  in  cases  of  impeachment. 

(a)  He  shall  have  power,  by  and  with 
the  advice  and  consent  of  the  senate, 
to  make  treaties,  provided  two-thirds  of 
the  senators  present  concur;  and  he 
shall  nominate,  and  by  and  with  the  ad- 
vice and  consent  of  the  senate,  shall  ap- 
point ambassadors,  other  public  min- 
isters and  consuls,  judges  of  the  su- 
preme court,  and  all  other  officers  of 
the  United  States,  whose  appointments 
are  not  herein  otherwise  provided  for. 


(t>)  The  president  shall  have  power  to 
fill  up  all  vacancies  that  may  happen 
during  the  recess  of  the  senate,  by 
granting  commissions  which  shall  ex- 
pire at  the  end  of  their  next  session. 

Sect.  3.  He  shall  from  time  to  time 
give  to  the  Congress  information  of  the 
state  of  the  union,  and  recommend  to 
their  consideration  such  measures  as 
he  shall  judge  necessary  and  expedient : 
he  may,  on  extraordinary  occasions, 
convene  both  houses,  or  either  of  them, 
and  in  case  of  disagreement  between 
them,  with  respect  to  the  time  of  ad- 
journment, he  may  adjourn  them  to 
such  time  as  he  shall  think  proper :  he 
shall    receive    ambassadors    and    other 


The  Constitution  as  signed. 

United  States ;  he  may  require  the 
Opinion,  in  writing,  of  the  principal 
Officer  in  each  of  the  executive  Depart- 
ments, upon  any  Subject  relating  to  the 
Duties  of  their  respective  Offices,  and 
he  shall  have  Power  to  grant  Reprieves 
and  Pardons  for  Offences  against  the 
United  States,  except  in  Cases  of  Im- 
peachment. 

He  shall  have  Power,  by  and  with 
the  Advice  and  Consent  of  the  Senate, 
to  make  Treaties,  provided  two  thirds 
of  the  Senators  present  concur ;  and  he 
shall  nominate,  and  by  and  with  the  Ad- 
vice and  Consent  of  the  Senate,  shall 
appoint  Ambassadors,  other  public  Min- 
isters and  Consuls,  Judges  of  the  su- 
preme Court,  and  all  other  Officers  of 
the  United  States,  whose  Appointments 
are  not  herein  otherwise  provided  for, 
and  which  shall  be  established  by  Law : 
but  the  Congress  may  by  law  vest  the 
Appointment  of  such  inferior  Officers, 
as  they  think  proper,  in  the  President 
alone,  in  the  Courts  of  Law,  or  in  the 
Heads    of    Departments. 

The  President  shall  have  Power  to 
fill  up  all  Vacancies  that  may  happen 
during  the  Recess  of  the  Senate,  by 
granting  Commissions  which  shall  ex- 
pire at  the  End  of  their  next  Session. 

Section  3.  He  shall  from  time  to 
time  give  to  the  Congress  Information 
of  the  State  of  the  Union,  and  recom- 
mend to  their  Consideration  such  Meas- 
ures as  he  shall  judge  necessary  and 
expedient ;  he  may,  on  extraordinary 
Occasions,  convene  both  Houses,  or 
either  of  them,  and  in  Case  of  Disagree- 
ment between  them,  with  Respect  to  the 
Time  of  Adjournment,  he  may  adjourn 
them  to  such  Time  as  he  shall  think 
proper ;   he   shall  receive  Ambassadors 


APPENDIX 


565 


Report  of  the  Committee  on  Style. 

public  ministers :  he  shall  take  care  that 
the  laws  be  faithfully  executed,  and 
shall  commission  all  the  officers  of  the 
United  States. 

Sect.  4.  The  president,  vice-presi- 
dent, and  all  civil  officers  of  the  United 
States,  shall  be  removed  from  office  on 
impeachment  for,  and  conviction  of 
treason,  bribery,  or  other  high  crimes 
and  misdemeanors. 

Ill 

Sect.  1.  The  judicial  power  of  the 
United  States,  both  in  law  and  equity, 
shall  be  vested  in  one  supreme  court, 
and  in  such  inferor  courts  as  the  Con- 
gress may  from  time  to  time  ordain  and 
establish.  The  judges,  both  of  the  su- 
preme and  inferior  courts,  shall  hold 
their  offices  during  good  behaviour,  and 
shall,  at  stated  times,  receive  for  their 
services,  a  compensation,  which  shall 
not  be  diminished  during  their  continu- 
ance in  office. 

Sect.  2.  The  judicial  power  shall  ex- 
tend to  all  cases,  both  in  law  and  equity, 
arising  under  this  constitution,  the  laws 
of  the  United  States,  and  treaties  made, 
or  which  shall  be  made,  under  their  au- 
thority. To  all  cases  affecting  ambas- 
sadors, other  public  ministers  and  con- 
suls. To  all  cases  of  admiralty  and 
maritime  jurisdiction.  To  controver- 
sies to  which  the  United  States  shall  be 
a  party.  To  controversies  between  two 
or  more  States ;  between  a  state  and 
citizens  of  another  state ;  between  citi- 
zens of  different  States ;  between  citi- 
zens of  the  same  state  claiming  lands 
under  grants  of  different  States,  and 
between  a  state,  or  the  citizens  thereof, 
and  foreign  States,  citizens  or  subjects. 


The  Constitution  as  signed. 

and  other  public  Ministers  ;  he  shall  take 
Care  that  the  Laws  be  faithfully  exe- 
cuted, and  shall  Commission  all  the 
Officers  of  the  United  States. 

Section  4.  The  President,  Vice  Pres- 
ident and  all  cfvil  Officers  of  the  United 
States,  shall  be  removed  from  Office  on 
Impeachment  for,  and  Conviction  of, 
Treason,  Bribery,  or  other  high  Crimes 
and  Misdemeanors. 

Article  III 

Section  1.  The  judicial  Power  of  the 
United  States,  shall  be  vested  in  one 
supreme  Court,  and  in  such  inferior 
Courts  as  the  Congress  may  from  time 
to  time  ordain  and  establish.  The 
Judges,  both  of  the  supreme  and  infe- 
rior Courts,  shall  hold  their  Offices  dur- 
ing good  Behaviour,  and  shall,  at  stated 
Times,  receive  for  their  Services,  a 
Compensation,  which  shall  not  be  di- 
minished during  their  Continuance  in 
Office. 

Section  2.  The  judicial  Power  shall 
extend  to  all  Cases,  in  Law  and  Equity, 
arising  under  this  Constitution,  the 
Laws  of  the  United  States,  and  Trea- 
ties made,  or  which  shall  be  made,  un- 
der their  Authority ;  —  to  all  Cases  af- 
fecting Ambassadors,  other  public  Min- 
isters and  Consuls;  —  to  all  Cases  of 
admiralty  and  maritime  Jurisdiction  ;  — 
to  Controversies  to  which  the  United 
States  shall  be  a  Party ;  —  to  Contro- 
versies between  two  or  more  States  ;  — 
between  a  State  and  Citizens  of  another 
State;  —  between  Citizens  of  different 
States, —  between  Citizens  of  the  same 
State  claiming  Lands  under  Grants  of 
different  States,  and  between  a  State, 
or  the  Citizens  thereof,  and  foreign 
States,  Citizens  or  Subjects. 


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Report  of  the  Committee  on  Style. 

In  cases  affecting  ambassadors,  other 
public  ministers  and  consuls,  and 
those  in  which  a  state  shall  be  a  party, 
the  supreme  court  shall  have  original 
jurisdiction.  In  all  the  other  cases  be- 
fore mentioned,  the  supreme  court  shall 
have  appellate  jurisdiction,  both  as  to 
law  and  fact,  with  such  exceptions,  and 
under  such  regulations  as  the  Congress 
shall  make. 

The  trial  of  all  crimes,  except  in 
cases  of  impeachment,  shall  be  by  jury ; 
and  such  trial  shall  be  held  in  the  state 
where  the  said  crimes  shall  have  been 
committed ;  but  when  not  committed 
within  any  state,  the  trial  shall  be  at 
such  place  or  places  as  the  Congress 
may  by  law  have  directed. 

Sect.  3.  Treason  against  the  United 
States,  shall  consist  only  in  levying  war 
against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort. 
No  person  shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  wit- 
nesses to  the  same  overt  act,  or  on  con- 
fession in  open  court. 

The  Congress  shall  have  power  to  de- 
clare the  punishment  of  treason,  but  no 
attainder  of  treason  shall  work  corrup- 
tion of  blood  nor  forfeiture,  except 
during  the  life  of  the  person  attainted. 


IV 

Sect.  1.  Full  faith  and  credit  shall 
be  given  in  each  state  to  the  public  acts, 
records,  and  judicial  proceedings  of 
every  other  state.  And  the  Congress 
may  by  general  laws  prescribe  the  man- 
ner in  which  such  acts,  records  and  pro- 
ceedings shall  be  proved,  and  the  effect 
thereof. 

Sect.  2.     The  citizens  of  each  state 


The  Constitution  as  signed. 

In  all  Cases  affecting  Ambassadors, 
other  public  Ministers  and  Consuls,  and 
those  in  which  a  State  shall  be  Party, 
the  supreme  Court  shall  have  original 
Jurisdiction.  In  all  the  other  Cases  be- 
fore mentioned,  the  Supreme  Court 
shall  have  appellate  Jurisdiction,  both 
as  to  Law  and  Fact,  with  such  Excep- 
tions, and  under  such  regulations  as  the 
Congress  shall  make. 

The  Trial  of  all  Crimes,  except  in 
Cases  of  Impeachment,  shall  be  by  Jury ; 
and  such  Trial  shall  be  held  in  the 
State  where  the  said  Crimes  shall  have 
been  committed ;  but  when  not  com- 
mitted within  any  State,  the  Trial  shall 
be  at  such  Place  or  Places  as  the  Con- 
gress may  by  Law  have  directed. 

Section  3.  Treason  against  the 
LTnited  States,  shall  consist  only  in  levy- 
ing War  against  them,  or  in  adhering 
to  their  Enemies,  giving  them  Aid  and 
Comfort.  No  Person  shall  be  convicted 
of  Treason  unless  on  the  Testimony  of 
two  Witnesses  to  the  same  overt  Act, 
or  on  Confession  in  open  Court. 

The  Congress  shall  have  Power  to 
declare  the  Punishment  of  Treason,  but 
no  Attainder  of  Treason  shall  work 
Corruption  of  Blood,  or  Forfeiture  ex- 
cept during  the  Life  of  the  Person 
attainted. 

Article  IV 

Section  1.  Full  Faith  and  Credit 
shall  be  given  in  each  State  to  the  pub- 
lic Acts,  Records,  and  judicial  Proceed- 
ings of  every  other  State.  And  the 
Congress  may  by  general  Laws  pre- 
scribe the  Manner  in  which  such  Acts, 
Records  and  Proceedings  shall  be 
proved,  and  the  Effect  thereof. 

Section    2.     The    Citizens    of    each 


APPENDIX 


567 


Report  of  the  Committee  on  Style. 

shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several 
states. 

A  person  charged  in  any  state  with 
treason,  felony,  or  other  crime,  who 
shall  flee  from  justice,  and  be  found  in 
another  state,  shall  on  demand  of  the 
executive  authority  of  the  state  from 
which  he  fled  be  delivered  up,  and  re- 
moved to  the  state  having  jurisdiction 
of  the  crime. 

No  person  legally  held  to  service  or 
labour  in  one  state,  escaping  into  an- 
other, shall  in  consequence  of  regula- 
tions subsisting  therein  be  discharged 
from  such  service  or  labor,  but  shall  be 
delivered  up  on  claim  of  the  party  to 
whom  such  service  or  labour  may  be 
due. 

Sect.  3.  New  states  may  be  admitted 
by  the  Congress  into  this  union ;  but  no 
new  state  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other 
state ;  nor  any  state  be  formed  by  the 
junction  of  two  or  more  states,  or  parts 
of  states,  without  the  consent  of  the  leg- 
islatures of  the  states  concerned  as  well 
as  of  the  Congress. 

The  Congress  shall  have  power  to  dis- 
pose of  and  make  all  needful  rules  and 
regulations  respecting  the  territory  or 
other  property  belonging  to  the  United 
States :  and  nothing  in  this  Constitu- 
tion shall  be  so  construed  as  to  preju- 
dice any  claims  of  the  United  States, 
or  of  any  particular  state. 

Sect.  4.  The  United  States  shall 
guarantee  to  every  state  in  this  union  a 
Republican  form  of  government,  and 
shall  protect  each  of  them  against  in- 
vasion ;  and  on  application  of  the  legis- 
lature or  executive,  against  domestic 
violence. 


The  Constitution  as  signed. 

State  shall  be  entitled  to  all  Privileges 
and  Immunities  of  Citizens  in  the  sev- 
eral States, 

A  Person  charged  in  any  State  with 
Treason,  Felony,  or  other  Crime,  who 
shall  flee  from  Justice,  and  be  found  in 
another  State,  shall  on  Demand  of  the 
executive  Authority  of  the  State  from 
which  he  fled,  be  delivered  up,  to  be  re- 
moved to  the  State  having  Jurisdiction 
of  the  Crime. 

No  Person  held  to  Service  or  Labour 
in  one  State,  under  the  Laws  thereof, 
escaping  into  another,  shall,  in  Conse- 
quence of  any  Law  or  Regulations 
therein,  be  discharged  from  such  Serv- 
ice or  Labour,  but  shall  be  delivered  up 
on  Claim  of  the  Party  to  whom  such 
Service  or  Labour  may  be  due. 

Section  3.  New  States  may  be  ad- 
mitted by  the  Congress  into  this  Union ; 
but  no  new  State  shall  be  formed  or 
erected  within  the  Jurisdiction  of  any 
other  State ;  nor  any  State  be  formed 
by  the  Junction  of  two  or  more  States, 
or  Parts  of  States,  without  the  Consent 
of  the  Legislatures  of  the  States  con- 
cerned as  well  as  of  the  Congress. 

The  Congress  shall  have  Power  to 
dispose  of  and  make  all  needful  Rules 
and  Regulations  respecting  the  Terri- 
tory or  other  Property  belonging  to  the 
United  States  ;  and  nothing  in  this  Con- 
stitution shall  be  so  construed  as  to 
prejudice  any  Claims  of  the  United 
States,  or  of  any  particular  State. 

Section  4.  The  United  States  shall 
guarantee  to  every  State  in  this  Union 
a  Republican  Form  of  Government,  and 
shall  protect  each  of  them  against  Inva- 
sion ;  and  on  Application  of  the  Legis- 
lature, or  of  the  Executive  (when  the 
Legislature  cannot  be  convened)  against 


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Report  of  the  Committee  on  Style. 


V 

The  Congress,  whenever  two-thirds 
of  both  houses  shall  deem  necessary,  or 
on  the  application  of  two-thirds  of  the 
legislatures  of  the  several  states,  shall 
propose  amendments  to  this  constitu- 
tion, which  shall  be  valid  to  all  intents 
and  purposes,  as  part  thereof,  when  the 
same  shall  have  been  ratified  by  three- 
fourths  at  least  of  the  legislatures  of 
the  several  states,  or  by  conventions  in 
three-fourths  thereof,  as  the  one  or  the 
other  mode  of  ratification  may  be  pro- 
posed by  the  Congress:  Provided,  that 
no  amendment  which  may  be  made 
prior  to  the  year  1808  shall  in  any  man- 
ner affect  the and  section  of 

article 


VI 

All  debts  contracted  and  engagements 
entered  into  before  the  adoption  of  this 
Constitution  shall  be  as  valid  against 
the  United  States  under  this  Constitu- 
tion as  under  the  confederation. 

This  constitution,  and  the  laws  of  the 
United  States  which  shall  be  made  in 
pursuance  thereof ;  and  all  treaties 
made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land ;  and  the 
judges  in  every  state  shall  be  bound 
thereby,  any  thing  in  the  constitution 
or  laws  of  any  state  to  the  contrary 
notwithstanding. 


The  Constitution  as  signed. 
domestic  Violence. 

Article  V 

The  Congress,  whenever  two  thirds 
of  both  Houses  shall  deem  it  necessary, 
shall  propose  Amendments  to  this  Con- 
stitution, or,  on  the  Application  of  the 
Legislatures  of  two  thirds  of  the  sev- 
eral States,  shall  call  a  Convention  for 
proposing  Amendments,  which,  in  either 
case,  shall  be  valid  to  all  Intents  and 
Purposes,  as  Part  of  this  Constitution, 
when  ratified  by  the  Legislatures  of 
three  fourths  of  the  several  States,  or 
by  Conventions  in  three  fourths  thereof, 
as  the  one  or  the  other  Mode  of  Rati- 
fication may  be  proposed  by  the  Con- 
gress ;  Provided  that  no  Amendment 
which  may  be  made  prior  to  the  Year 
One  thousand  eight  hundred  and  eight 
shall  in  any  Manner  affect  the  first  and 
fourth  Clauses  in  the  Ninth  Section  of 
the  first  Article  ;  and  that  no  State,  with- 
out its  Consent,  shall  be  deprived  of  it's 
equal  Suffrage  in  the  Senate. 

Article  VI 

All  Debts  contracted  and  Engage- 
ments entered  into,  before  the  Adoption 
of  this  Constitution,  shall  be  as  valid 
against  the  United  States  under  this 
Constitution,  as  under  the  Confedera- 
tion. 

This  Constitution,  and  the  Laws  of 
the  United  States  which  shall  be  made 
in  Pursuance  thereof ;  and  all  Treaties 
made,  or  which  shall  be  made,  under  the 
Authority  of  the  United  States,  shall 
be  the  supreme  Law  of  the  Land ;  and 
the  Judges  in  every  State  shall  be  bound 
thereby,  any  Thing  in  the  Constitution 
or  Laws  of  any  State  to  the  Contrary 
notwithstanding. 


APPENDIX 


569 


Report  of  the  Committee  on  Style. 

The  senators  and  representatives  be- 
forementioned,  and  the  members  of  the 
several  state  legislatures,  and  all  execu- 
tive and  judicial  officers,  both  of  the 
United  States  and  of  the  several  States, 
shall  be  bound  by  oath  or  affirmation,  to 
support  this  constitution ;  but  no  reli- 
gious test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust 
under  the  United  States. 

VII 

The  ratification  of  the  conventions  of 
nine  States,  shall  be  sufficient  for  the 
establishment  of  this  constitution  be- 
tween the  States  so  ratifying  the  same. 


The  Constitution  as  signed. 

The  Senators  and  Representatives 
before  mentioned,  and  the  Members  of 
the  several  State  Legislatures,  and  all 
executive  and  judicial  Officers,  both  of 
the  United  States  and  of  the  several 
States,  shall  be  bound  by  Oath  or  Af- 
firmation, to  support  this  Constitution; 
but  no  religious  Test  shall  ever  be  re- 
quired as  a  Qualification  to  any  Office 
or  public  Trust  under  the  United  States. 

Article  VII 

The  Ratification  of  the  Conventions 
of  nine  States,  shall  be  sufficient  for  the 
Establishment  of  this  Constitution  be- 
tween the  States  so  ratifying  the  Same. 


570  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 


X.     LETTER  TRANSMITTING  THE  CONSTITUTION  TO  CONGRESS, 

SEPTEMBER  17,  1787.1 

We  have  now  the  honor  to  submit  to  the  consideration  of  the  United  States 
in  Congress  assembled,  that  Constitution  which  has  appeared  to  us  the  most 
adviseable. 

The  friends  of  our  country  have  long  seen  and  desired,  that  the  power  of 
making  war,  peace,  and  treaties,  that  of  levying  money  and  regulating  commerce, 
and  the  correspondent  executive  and  judicial  authorities  should  be  fully  and 
effectually  vested  in  the  general  government  of  the  Union:  But  the  impropriety 
of  delegating  such  extensive  trust  to  one  body  of  men  is  evident  —  Hence  results 
the  necessity  of  a  different  organization. 

It  is  obviously  impracticable  in  the  federal  government  of  these  states,  to 
secure  all  rights  of  independent  sovereignty  to  each,  and  yet  provide  for  the 
interest  and  safety  of  all :  Individuals  entering  into  society,  must  give  up  a  share 
of  liberty  to  preserve  the  rest.  The  magnitude  of  the  sacrifice  must  depend  as 
well  on  situation  and  circumstances,  as  on  the  object  to  be  obtained.  It  is  at  all 
times  difficult  to  draw  with  precision  the  line  between  those  rights  which  must  be 
surrendered,  and  those  which  may  be  reserved :  and  on  the  present  occasion  this 
difficulty  was  encreased  by  a  difference  among  the  several  states  as  to  their  situ- 
ation, extent,  habits,  and  particular  interests. 

In  all  our  deliberations  on  this  subject  we  kept  steadily  in  our  view,  that  which 
appears  to  us  the  greatest  interest  of  every  true  American,  the  consolidation  of 
our  Union,  in  which  is  involved  our  prosperity,  felicity,  safety,  perhaps  our  na- 
tional existence.  This  important  consideration,  seriously  and  deeply  impressed 
on  our  minds,  led  each  state  in  the  Convention  to  be  less  rigid  on  points  of  inferior 
magnitude,  than  might  have  been  otherwise  expected ;  and  thus  the  Constitution, 
which  we  now  present,  is  the  result  of  a  spirit  of  amity,  and  of  that  mutual 
deference  and  concession  which  the  peculiarity  of  our  political  situation  rendered 
indispensible. 

That  it  will  meet  the  full  and  entire  approbation  of  every  state  is  not  perhaps 
to  be  expected ;  but  each  will  doubtless  consider,  that  had  her  interest  been  alone 
consulted,  the  consequences  might  have  been  particularly  disagreeable  or  injuri- 
ous to  others ;  that  it  is  liable  to  as  few  exceptions  as  could  reasonably  have  been 
expected,  we  hope  and  believe;  that  it  may  promote  the  lasting  welfare  of  that 
country  so  dear  to  us  all,  and  secure  her  freedom  and  happiness,  is  our  most 
ardent  wish. 

1  Documentary  History,  Vol.  ii,  pp.  1-2. 


APPENDIX  571 


XI.    RESOLUTION   OF  THE   CONVENTION,   SEPTEMBER   17,    1787, 

THAT   CONGRESS   TRANSMIT   THE   CONSTITUTION   TO 

THE  STATES  FOR  RATIFICATION.1 

Resolved,  That  the  preceeding  Constitution  be  laid  before  the  United  States 
in  Congress  assembled,  and  that  it  is  the  Opinion  of  this  Convention,  that  it  should 
afterwards  be  submitted  to  a  Convention  of  Delegates,  chosen  in  each  State  by 
the  People  thereof,  under  the  Recommendation  of  its  Legislature,  for  their  Assent 
and  Ratification; 2  and  that  each  Convention  assenting  to,  and  ratifying  the  Same, 
should  give  Notice  thereof  to  the  United  States  in  Congress  assembled.  Resolved, 
That  it  is  the  Opinion  of  this  Convention,  that  as  soon  as  the  Conventions  of  nine 
States  shall  have  ratified  this  Constitution,  the  United  States  in  Congress  assem- 
bled should  fix  a  Day  on  which  Electors  should  be  appointed  by  the  States  which 
shall  have  ratified  the  same,  and  a  Day  on  which  the  Electors  should  assemble  to 
vote  for  the  President,  and  the  Time  and  Place  for  commencing  Proceedings 
under  this  Constitution.  That  after  such  Publication  the  Electors  should  be  ap- 
pointed, and  the  Senators  and  Representatives  elected :  That  the  Electors  should 
meet  on  the  Day  fixed  for  the  Election  of  the  President,  and  should  transmit  their 
Votes  certified,  signed,  sealed  and  directed,  as  the  Constitution  requires,  to  the 
Secretary  of  the  United  States  in  Congress  assembled,  that  the  Senators  and 
Representatives  should  convene  at  the  Time  and  Place  assigned ;  that  the  Senators 
should  appoint  a  President  of  the  Senate,  for  the  sole  Purpose  of  receiving,  open- 
ing and  counting  the  Votes  for  President ;  and,  that  after  he  shall  be  chosen,  the 
Congress,  together  with  the  President,  should,  without  Delay,  proceed  to  execute 
this  Constitution. 

By  the  Unanimous  Order  of  the  Convention 

G°     WASHINGTON  Presid' 
W.  Jackson  Secretary. 

1  Documentary  History  of  the  Constitution,  Vol.  ii,  pp.  20-21. 

2  In  compliance  with  this  resolution  the  Congress  on  September  28,  1787,  transmitted  the 
Constitution  to  the  States,  which  called  conventions  and  ratified  it  in  the  following  order: 
Delaware,  December  7,  1787;  Pennsylvania,  December  12,  1787;  New  Jersey,  December  18, 
1787;  Georgia,  January  2,  1788;  Connecticut,  January  9,  1788;  Massachusetts,  February  6, 
1788;  Maryland,  April  28,  1788;  South  Carolina,  Mav  23,  1788;  New  Hampshire.  June  21, 
1788;  Virginia,  June  26,  1788;  and  New  York,  July  26,  1788.  The  President  informed  Con- 
gress, on  January  28,  1790,  that  North  Carolina  had  ratified  the  Constitution  November  21, 
1789;  and  he  informed  Congress  on  June  1,  1790,  that  Rhode  Island  had  ratified  the  Consti- 
tution May  29,  1790.  Vermont,  in  convention,  ratified  the  Constitution  January  10,  1789,  and 
was,  by  an  act  of  Congress  approved  February  19,  1791,  "received  and  admitted  into  this 
Union  as  a  new  and  entire  member  of  the  United  States." 


D.    AMENDMENTS  TO  THE  CONSTITUTION. 

I.    THE  FIRST   TEN  AMENDMENTS  TO   THE  CONSTITUTION   IN 
LIEU  OF  A  BILL  OF  RIGHTS. 

Articles  in  Addition  To,  and  Amendment  Of,  the  Constitution  of  the 
United  States  of  America,  Proposed  by  Congress,  and  Ratified  by  the 
Legislatures  of  the  Several  States  Pursuant  to  the  Fifth  Article 
of  the  Original  Constitution. 

Article  I.1 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  pro- 
hibiting the  free  exercises  thereof ;  or  abridging  the  freedom  of  speech,  or  of  the 
press ;  or  the  right  of  the  people  peaceably  to  assemble,  and  to  petition  the  Gov- 
ernment for  a  redress  of  grievances. 

Article  II. 

A  well  regulated  Militia,  being  necessary  to  the  security  of  a  free  State,  the 
right  of  the  people  to  keep  and  bear  Arms,  shall  not  be  infringed. 

Article  III. 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house,  without  the 
consent  of  the  Owner,  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed  by  law. 

Article  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and 
effects,  against  unreasonable  searches  and  seizures,  shall  not  be  violated,  and  no 
Warrants  shall  issue,  but  upon  probable  cause,  supported  by  Oath  or  affirmation, 
and  particularly  describing  the  place  to  be  searched,  and  the  persons  or  things 
to  be  seized. 

Article  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  infamous  crime, 
unless  on  a  presentment  or  indictment  of  a  Grand  Jury,  except  in  cases  arising 
in  the  land  or  naval  forces,  or  in  the  Militia,  when  in  actual  service  in  time  of 
War  or  public  danger;  nor  shall  any  person  be  subject  for  the  same  offence  to  be 
twice  put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any  Criminal  Case 
to  be  a  witness  against  himself,  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law ;  nor  shall  private  property  be  taken  for  public  use, 
without   just   compensation. 

1  The  first  ten  amendments  to  the  Constitution  of  the  United  States  were  proposed  to  the 
legislatures  of  the  several  States  by  the  First  Congress,  on  the  25th  of  September,  1789. 
They  were  ratified  by  the  following  States,  and  the  notifications  of  ratification  by  the  gov- 
ernors thereof  were  successively  communicated  by  the  President  to  Congress :  New  Jersey, 
November  20,  1789;  Maryland,  December  19,  1789;  North  Carolina,  December  22,  1789;  South 
Carolina,  January  19,  1790;  New  Hampshire,  Januarv  25,  1790;  Delaware,  January  28,  1790; 
Pennsylvania,  March  10.  1790;  New  York,  March  27,  1790;  Rhode  Island,  June  15,  1790; 
Vermont,  November  3,  1791,  and  Virginia,  December  15,  1791.  There  is  no  evidence  on  the 
journals  of  Congress  that  the  legislatures  of  Connecticut,  Georgia,  and  Massachusetts  rati- 
fied them. 

572 


APPENDIX 


573 


Article  VI. 
In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  .an  impartial  jury  of  the  State  and  district  wherein  the  crime 
shall  have  been  committed,  which  district  shall  have  been  previously  ascertained 
by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  accusation;  to  be  con- 
fronted with  the  witnesses  against  him ;  to  have  compulsory  process  for  obtaining 
Witnesses  in  his  favor,  and  to  have  the  Assistance  of  Counsel  for  his  defence. 

Article  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  Court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  common  law. 

Article  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punishments  inflicted. 

Article  IX. 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be  construed 
to  deny  or  disparage  others  retained  by  the  people. 

Article  X. 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the  people. 


II.     SUBSEQUENT  AMENDMENTS  TO  THE  CONSTITUTION. 

Article  XI.1 

The  Judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one  of  the  United 
States  by  Citizens  of  another  State,  or  by  Citizens  or  Subjects  of  any  Foreign 
State. 

Article  XII.2 

The  Electors  shall  meet  in  their  respective  states,  and  vote  by  ballot  for  Presi- 
dent and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of  the 
same  state  with  themselves ;  they  shall  name  in  their  ballots  the  person  voted  for  as 
President,  and  in  distinct  ballots  the  person  voted  for  as  Vice-President,  and  they 
shall  make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all  persons 

1  The  eleventh  amendment  was  declared  in  a  message  from  the  President  to  Congress, 
dated  the  8th  of  January,  1798,  to  have  heen  ratified  by  the  legislatures  of  three-fourths  of 
the  States. 

2  The  twelfth  amendment,  in  lieu  of  the  original  third  paragraph  of  the  first  section  of 
the  second  article,  was  declared  in  a  proclamation  of  the  Secretary  of  State,  dated  the  25th 
of  September,  1804,  to  have  been  ratified  by  the  legislatures  of  three-fourths  of  the  States. 


574  THE    UNITED   STATES:    A    STUDY    IN    INTERNATIONAL   ORGANIZATION 

voted  for  as  Vice-President,  and  of  the  number  of  votes  for  each,  which  lists  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  President  of  the  Senate;  —  The  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Representatives,  open 
all  the  certificates  and  the  votes  shall  then  be  counted ;  —  The  person  having  the 
greatest  number  of  votes  for  President,  shall  be  the  President,  if  such  number  be 
a  majority  of  the  whole  number  of  Electors  appointed;  and  if  no  person  have 
such  majority,  then  from  the  persons  having  the  highest  numbers  not  exceeding 
three  On  the  list  of  those  voted  for  as  President,  the  House  of  Representatives 
shall  choose  immediately,  by  ballot,  the  President.  But  in  choosing  the  President, 
the  votes  shall  be  taken  by  states,  the  representation  from  each  state  having  one 
vote;  a  quorum  for  this  purpose  shall  consist  of  a  member  or  members  from 
two-thirds  of  the  states,  and  a  majority  of  all  the  states  shall  be  necessary  to  a 
choice.  And  if  the  House  of  Representatives  shall  not  choose  a  President  when- 
ever the  right  of  choice  shall  devolve  upon  them,  before  the  fourth  day  of  March 
next  following,  then  the  Vice-President  shall  act  as  President,  as  in  the  case  of 
the  death  or  other  constitutional  disability  of  the  President. —  The  person  having 
the  greatest  number  of  votes  as  Vice-President,  shall  be  the  Vice-President,  if 
such  number  be  a  majority  of  the  whole  number  of  Electors  appointed,  and  if 
no  person  have  a  majority,  then  from  the  two  highest  numbers  on  the  list,  the 
Senate  shall  choose  the  Vice-President ;  a  quorum  for  the  purpose  shall  consist  of 
two-thirds  of  the  whole  number  of  Senators,  and  a  majority  of  the  whole  number 
shall  be  necessary  to  a  choice.  But  no  person  constitutionally  ineligible  to  the 
office  of  President  shall  be  eligible  to  that  of  Vice-President  of  the  United  States. 

Article  XIII.1 

Section  1.  Neither  slavery  nor  involuntary  servitude,  except  as  a  punish- 
ment for  crime  whereof  the  party  shall  have  been  duly  convicted,  shall  exist 
within  the  United  States,  or  any  place  subject  to  their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 

Article  XIV.2 

Section  1.  All  persons  born  or  naturalized  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reside.  No  State  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United  States ;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property,  without  due  process  of  law; 
nor  deny  to  any  person  within  its  jurisdiction  the  equal  protection  of  the  laws. 

Section  2.  Representatives  shall  be  apportioned  among  the  several  States 
according  to  their  respective  numbers,  counting  the  whole  number  of  persons  in 

1  The  thirteenth  amendment  was  declared,  in  a  proclamation  of  the  Secretary  of  State, 
dated  the  18th  of  Decemher,  1865,  to  have  been  ratified  by  the  legislatures  of  twenty-seven 
of  the  thirty-six  States. 

-  The  fourteenth  amendment  was,  in  a  proclamation  of  the  Secretary  of  State,  dated 
the  28th  of  July,  1868,  declared  to  have  been  ratified  by  the  legislatures  of  thirty  of  the 
thirty-six  States. 


APPENDIX  575 

each  State,  excluding  Indians  not  taxed.  But  when  the  right  to  vote  at  any 
election  for  the  choice  of  electors  for  President  and  Vice-President  of  the  United 
States,  Representatives  in  Congress,  the  Executive  and  Judicial  officers  of  a 
State,  or  the  members  of  the  Legislature  thereof,  is  denied  to  any  of  the  male 
inhabitants  of  such  State,  being  twenty-one  years  of  age,  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  participation  in  rebellion,  or 
other  crime,  the  basis  of  representation  therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to  the  whole  number  of  male 
citizens  twenty-one  years  of  age  in  such  State. 

Section  3.  No  person  shall  be  a  Senator  or  Representative  in  Congress,  or 
elector  of  President  and  Vice-President,  or  hold  any  office,  civil  or  military,  under 
the  United  States,  or  under  any  State,  who,  having  previously  taken  an  oath, 
as  a  member  of  Congress,  or  as  an  officer  of  the  United  States,  or  as  a  member  of 
any  State  legislature,  or  as  an  executive  or  judicial  officer  of  any  State,  to  sup- 
port the  Constitution  of  the  United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to  the  enemies  thereof.  But 
Congress  may  by  a  vote  of  two-thirds  of  each  House,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the  United  States,  authorized 
by  law,  including  debts  incurred  for  payment  of  pensions  and  bounties  for  services 
in  suppressing  insurrection  or  rebellion,  shall  not  be  questioned.  But  neither  the 
United  States  nor  any  State  shall  assume  or  pay  any  debt  or  obligation  incurred 
in  aid  of  insurrection  or  rebellion  against  the  United  States,  or  any  claim  for  the 
loss  or  emancipation  of  any  slave ;  but  all  such  debts,  obligations  and  claims  shall 
be  held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce,  by  appropriate  legis- 
lation, the  provisions  of  this  article. 

Article  XV.1 

Section  1.  The  right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States  or  by  any  State  on  account  of  race, 
color,  or  previous  condition  of  servitude. 

Section  2.  The  Congress  shall  have  power  to  enforce  this  article  by  ap- 
propriate legislation. 

Article  XVI.2 

The  Congress  shall  have  power  to  lay  and  collect  taxes  on  incomes,  from 
whatever  source  derived,  without  apportionment  among  the  several  States,  and 
without  regard  to  any  census  or  enumeration. 

1  The  fifteenth  amendment  was  declared,  in  a  proclamation  of  the  Secretary  of  State,  dated 
March  30,  1870,  to  have  been  ratified  by  the  legislatures  of  twenty-nine  of  the  thirty-seven 
States. 

2  The  sixteenth  amendment  was  declared,  in  a  proclamation  by  the  Secretary  of  State, 
dated  February  25,  1913,  to  have  been  ratified  by  the  legislatures  of  thirty-eight  of  the  forty- 
eight  States. 


576  THE    UNITED   STATES:    A   STUDY    IN    INTERNATIONAL  ORGANIZATION 

Article  XVII.1 

(1)  The  Senate  of  the  United  States  shall  be  composed  of  two  Senators  from 
each  State,  elected  by  the  people  thereof,  for  six  years ;  and  each  Senator  shall 
have  one  vote.  The  electors  in  each  State  shall  have  the  qualifications  requisite 
for  electors  of  the  most  numerous  branch  of  the  State  legislatures. 

(2)  When  vacancies  happen  in  the  representation  of  any  State  in  the  Senate, 
the  executive  authority  of  such  State  shall  issue  writs  of  election  to  fill  such 
vacancies ;  Provided,  That  the  legislature  of  any  State  may  empower  the  execu- 
tive thereof  to  make  temporary  appointments  until  the  people  fill  the  vacancies  by 
election  as  the  legislature  may  direct. 

(3)  This  amendment  shall  not  be  so  construed  as  to  affect  the  election  or  term 
of  any  Senator  chosen  before  it  becomes  valid  as  part  of  the  Constitution. 

Article  XVIII.2 

Section  1.  After  one  year  from  the  ratification  of  this  article  the  manu- 
facture, sale,  or  transportation  of  intoxicating  liquors  within,  the  importation 
thereof  into,  or  the  exportation  thereof  from  the  United  States  and  all  territory 
subject  to  the  jurisdiction  thereof  for  beverage  purposes  is  hereby  prohibited. 

Sec.  2.  The  Congress  and  the  several  States  shall  have  concurrent  power 
to  enforce  this  article  by  appropriate  legislation. 

Sec.  3.  This  article  shall  be  inoperative  unless  it  shall  have  been  ratified 
as  an  amendment  to  the  Constitution  by  the  legislatures  of  the  several  States, 
as  provided  in  the  Constitution,  within  seven  ye"ars  from  the  date  of  the  sub- 
mission hereof  to  the  States  by  the  Congress. 

1  The  seventeenth  amendment  was  declared,  in  a  proclamation  by  the  Secretary  of  State, 
dated  May  31,  1913,  to  have  been  ratified  by  the  legislatures  of  thirty-six  of  the  forty-eight 
States. 

2  The  eighteenth  amendment  was  declared,  in  a  proclamation  by  the  Acting  Secretary 
of  State,  dated  January  29,  1919,  to  have  been  ratified  by  the  legislatures  of  thirty-six  of  the 
forty-eight  States. 


INDEX 


INDEX 


Active,  The,  case  of,  219-22,  341. 

Adams,  John,  Massachusetts  delegate  to  first 
Continental  Congress,  23;  views  of,  re- 
specting Navigation  Acts  and  Acts  of 
Trade,  26;  seconded  Lee's  motion  for  a 
declaration  of  independence,  29;  seconded 
motion  for  appointment  of  Washington  as 
commander-in-chief,  29;  member,  drafting 
committee,  Declaration  of  Independence, 
29,  30,  30  note ;  on  southern  States,  41 ; 
on  Massachusetts  act  of  November  10, 
1775,  establishing  a  prize  jurisdiction, 
216. 

Adams,  Samuel,  leader,  Massachusetts  House 
of  Representatives,  23 ;  delegate  to  first 
Continental  Congress,  23 ;  in  favor  of 
amendments  to  Constitution,  310. 

Admiralty  Courts,  in  colonies,  213,  218;  pro- 
visions for,  under  Confederation,  214  et 
seq.;  of  Pennsylvania,  verdict,  case  of  The 
Active,  220,  221 ;  appeal  to  Congress  from, 
221 ;  appeal  from,  to  Court  of  Appeals 
in   Cases  of   Capture,  224. 

Admiralty  jurisdiction,  judicial  power  of 
United  States  extends  to  cases  of,  212, 
447,  499 ;  law  obtaining  in  courts  of,  447, 
460 ;  District  Court  of  United  States  a 
court    of,   447-8. 

Admission  of  new  States,  provision  for,  Ran- 
dolph plan,  159;  provision  for,  Patterson 
plan,  178;  the  Northwest  Ordinance,  286-8; 
compact  between  people  of  States  and  of 
Northwest  Territory,  288-91  ;  attitude  of 
large  States  toward,  291  ;  debate  concern- 
ing, in  Federal  Convention,  293-4 ;  equality 
of  new  States,  294;  rights  of  existing 
States  safeguarded,  294;  right  of  Con- 
gress to  govern  territories  until  their  ad- 
mission to  union,  295. 

Adventurers  and  Planters  of  the  City  of 
London  for  the  First  Colony  in  Virginia. 
See  London  Company. 

Albany  Congress,  1754,  proposed  by  Great 
Britain,  11;  colonies  represented  at,  11; 
sentiment  for  union  in,  11 ;  adoption  of 
Franklin's  plan  by,  11.  See  also  Frank- 
lin's Plan,  1754. 

Albany  Plan.     See  Franklin's  Plan,  1754. 

Ambassadors,  how  nominated  and  appointed, 
199,  273-4;  received  by  president,  199; 
power  of  judiciary  to  pass  upon  cases  af- 

579 


fecting,  212,  256,  262,  263,  398,  399,  403, 
416-17. 

Amendments,  to  State  constitutions,  139;  to 
Articles  of  Confederation,  53-4,  57,  145-7. 

Amendments  to  Constitution,  first  ten,  a  bill 
of  rights,  46,  137,  324  et  seq  ;  provi- 
sions for,  159,  299-300;  unanimous  con- 
sent of  States  not  necessary,  299;  right 
of  small  States  to  equality  not  subject 
to,  300;  methods  of,  300  et  seq.;  power 
to  make,  304-5 ;  Constitution  ratified  by 
certain  States  under  condition  of,  309  et 
seq.;  moved  in  first  session  of  Congress 
under  Constitution,  323  ct  seq.;  respect- 
ing a  bill  of  rights,  324;  respecting  rela- 
tion of  States  to  union,  325;  before  the 
Senate,  326;  added  to  text  of  Constitu- 
tion, 326;  value  of,  330;  eleventh  amend- 
ment, respecting  immunity  of  States  from 
suit,  465 ;  ratification  of,  by  States,  572-6 
notes ;  text  of,  572-6 

Ames  v.  Kansas,  case  of,  416-18 

American  Revolution,  object  of,  10;  Monroe 
on  causes  of  success  of,  33 ;  English  atti- 
tude respecting  relations  with  colonics, 
cause  of,  66;  colonies  independent  of  each 
other  before,  125;  results  of,  confirmed  by 
adoption  of  Constitution,  126;  steps  taken 
to  prevent  anarchy  during,  129-30. 

Anarchy  during  Revolution,  steps  taken  to 
prevent,   129-30. 

Annapolis  Convention,  1786,  convocation  of, 
56,  145;  delegates  to,  56;  unauthorized  by 
Congress,  56,  57;  only  five  States  rep- 
resented at,  56,  146;  another  conven- 
tion proposed  by,  57-8,  151,  166;  recom- 
mended framing  of  a  Constitution,  130, 
146,  150 ;  demands  of  commerce  and  navi- 
gation considered  by,  145-6,  166. 

Anne,  Queen,  affirmed  report  of  Commis- 
sion, case  of  Penn  v.  Baltimore,  124. 

Appeal,  Courts  of,  in  Delaware,  126,  139; 
of  colonies  in  general,  133,  138;  in  New 
York,  139;  in  Virginia,  405.  See  also 
Court  of  Appeals  in  Cases  of  Capture. 

Appeal,  Lords  of,  opinion  of,  respecting  a 
local  law  contrary  to  English  common 
law,  97,   121. 

Appeals,  Congressional  Committee  on.  See 
Committee  on  Appeals. 

Appeals    from    the    Plantations.    See    Com- 


580 


INDEX 


mittee  for  Hearing  Appeals  from  the  Plan- 
tations. 

Arbitration,  considered  in  relation  to  estab- 
lishment of  Supreme  Court,  270 ;  submis- 
sion of  political  questions  to,  270-1,  271 
note. 

Aristotle   on   justice,  211,   213. 

Arkansas,  constitution  of,  457-8. 

Army,  power  of  Congress  to  raise  and  main- 
tain, 43,  167;  president  commander-in-chief 
of,  167,  197 ;  not  to  be  kept  by  States  in 
time  of  peace,  210,  212. 

Arnold,  Welcome,  member  of  court,  case 
of  Pennsylvania  v.  Connecticut,  232,  233. 

Articles  of  Confederation,  Dickinson's  draft 
of,  18,  40,  41-2,  237;  union  created  by,  34, 
58-60;  independence  regulated  by,  40;  rati- 
fication of,  40,  50,  53,  58,  59,  210,  214,  292, 
292  note,  305 ;  existing  forms  of,  41 ;  sum- 
mary of,  42-5;  treaty-making  provisions 
under,  43,  44,  49,  198  note,  248;  legisla- 
tive powers  conferred  by,  43  et  seq.,  137, 
160,  173,  341 ;  executive  powers  conferred 
by,  43  et  seq.,  160,  341 ;  judicial  powers 
conferred  by,  44,  45,  109,  119  note,  126, 
160,  210  et  seq.,  229  et  seq.,  247-9,  268-9, 
341-2,  455-7;  defects  of,  45-6,  145,  157,  160, 
165-6,  194,  200,  247-9,  305  ;  excellences  of, 
46-7;  revision  of,  original  purpose  of 
Federal  Convention,  47,  53,  57-8,  130,  160, 
247,  299;  international  significance  of,  47; 
Madison's  summary  of  the  weakness  of, 
47-53 ;  dissatisfaction  concerning,  53 ;  four 
proposals  to  amend,  53-4 ;  replaced  by  Con- 
stitution, 53,  58,  130,  147,  161 ;  amendments 
to,  57,  145-7,  299;  a  reversion  to  written 
charters,  84 ;  certain  provisions  of,  incor- 
porated into  Constitution,  131  ;  equality  of 
votes  of  States  under,  151,  152;  correc- 
tion and  enlargement  of,  proposed  by  Ran- 
dolph, 158-9;  certain  rights  of  States  re- 
s  nounced  by,  160,  210;  Patterson  plan  a 
revision  of,  164,  177-8;  part  of  the  "law 
of  the  land"  of  each  State,  277;  text  of, 
494-502.    See  also  Confederation. 

Assemblies.     See  Representative  Assemblies. 

Atherton  purchase,  103-4,  109. 

Bacon,  Sir  Francis,  second  Virginia  charter, 
drafted  by,  71;  third  Virginia  charter, 
drafted    by,   72. 

Baiz,  In  re,  440  note. 

Baldwin,  Abraham,  vote  and  views  of,  re- 
specting representation  in  the  Senate,  176, 
176  note ;  member,  compromise  committee, 
Senate   suffrage  controversy,   185. 

Baldwin,  Mr.  Justice  (Henry),  on  distinction 
between  political  and  judicial  questions, 
386-7,   420-4;    on   determination   of   juris- 


diction, 401-2;  on  extent  of  judicial  power 
of  the  United  States,  405. 

Baltimore,  Lord,  agreement  of,  with  sons 
of  Perm,  1732,  101,  124;  grant  of  Mary- 
land to,  121.    See  also  Penn  v.  Baltimore. 

Bancroft,  George,  on  representative  assem- 
blies, 84  note ;  on  boundary  dispute  in- 
volving existence  of  Vermont,  238,  239. 

Bank  of  United  States  v.  Planters'  Bank 
of  Georgia,  464-5. 

Bankrupt  Act,  1867,  416. 

Beard,  Charles  A.,  on  sentiment  in  Federal 
Convention  respecting  judicial  control, 
362-3. 

Beasley,  Mr.  Chief  Justice,  jurisdiction  de- 
fined by,  400. 

Bedford,  Gunning,  views  of,  respecting  equal- 
ity of  States  in  legislature,  183-4 ;  mem- 
ber of  compromise  committee,  Senate  suf- 
frage   controversy,    185. 

Beers  v.  State  of  Arkansas,  457-8. 

Bennington,  battle  of,  239. 

Benson,  Egbert,  delegate  of  New  York  to 
Annapolis  Convention,  56 ;  member  court, 
South  Carolina-Georgia  boundary  dispute, 
237. 

Berkley  of  Stratton,  Lord,  grant  of  New 
Jersey  to,   116. 

Bermuda  Island,  grant  of,  to  London  Com- 
pany, 72. 

Betsey,  The,  case  of,  447. 

Beverly,  Robert,  on  representative  assem- 
blies  in   Virginia,   76,  84  note. 

Bill  of  Rights,  first  ten  amendments  to  Con- 
stitution a,  46,  137,  324  et  seq.;  prefixed 
to  State  constitutions,  137;  of  1689  (Eng- 
lish), 138;  of  Massachusetts,  133-5,  140; 
of  Virginia,  135,  308,  313,  328. 

Bills  of  credit,  power  to  emit,  given  to  Con- 
gress, 43. 

Blackstone,  Sir  William,  on  rights  of  con- 
quest, 91  ;  on  dependent  dominions,  93 ; 
works  of,  consulted  by  framers  of  Con- 
stitution, 439 ;  on  international  and  com- 
mon law,  439,  440. 

Blair,  Justice,  Circuit  Court  for  District  of 
Pennsylvania,  350;  opinion  of,  respecting 
the  unconstitutionality  of  an  act  of  Con- 
gress, 316. 

Blankard  v.  Galdy,  92-3,  95. 

Board  of  Trade,  opinion  respecting  New 
Jersey  Boundary  Act  of  1748,  111-15,  117; 
opinion  respecting  New  York-Connecticut 
boundary  agreement,  114;  colonial  bound- 
ary disputes  referred  to,  118  note,  119 
note;  reference  to,  of  laws  in  excess  of 
charter  grants,  120;  case  of  Lechmere  v. 
Winthrop   not   referred   to,   120. 

Boundary  disputes,  based  upon  an  agreement, 


INDEX 


581 


101,  114,  121-5,  386-7,  420-1;  between  a 
citizen  and  a  State,  101  ;  in  absence  of  an 
enforcible  agreement,  109-18;  how  deter- 
mined, 118  note,  119  note,  125,  230,  422; 
provision  of  Articles  of  Confederation  re- 
specting, 229;  settled  by  temporary  judicial 
commissions,  229  et  scq.;  made  justiciable 
by  Constitution,  271,  419,  422-3;  judicial 
in  nature,  386-7;  English  precedents  and 
cases,  421-2;  Penn  v.  Lord  Baltimore,  101, 
121-5,  386,  387,  420,  421 ;  Holden  and  Green 
petition,  101-9;  between  Massachusetts  and 
New  Hampshire,  118  note,  421;  Massachu- 
setts and  New  York,  234-6,  237;  Massa- 
chusetts and  Vermont,  238-41 ;  New  Hamp- 
shire and  Vermont,  238-41 ;  New  York  and 
Connecticut,  114,  386;  New  York  and 
Massachusetts,  118  note;  New  York  and 
New  Jersey,  109-18;  New  York  and  Ver- 
mont, 238-41 ;  North  Carolina  and  South 
Carolina,  118  note;  North  Carolina  and 
Virginia,  118  note,  119  note;  Pennsylvania 
and  Connecticut,  231-4,  237;  Pennsylvania 
and  Virginia,  239,  241-2,  243;  Rhode  Is- 
land and  Connecticut,  118;  Rhode  Island 
and  Massachusetts,  118,  119  note,  125, 
270,  379,  386-7,  401-2,  405,  420-4;  South 
Carolina  and  Georgia,  234,  236-7;  Vir- 
ginia and  West  Virginia,  96,  125-6. 

Bourgeois,  Leon,  views  of,  respecting  sub- 
mission of  political  questions  to  arbitra- 
tion, 270-1,  271   note. 

Bowdoin,  James,  Massachusetts  delegate  to 
First  Continental  Congress,  23. 

Boyd  v.  United   States,  444. 

Bradford,  William,  agent,  case  of  Penn- 
sylvania v.  Connecticut,  232. 

Bradley,  Mr.  Justice,  on  concurrent  powers 
of  Federal  and  State  courts,  415-16;  on 
questions  made  justiciable  by  Constitu- 
tion, 419 ;  on  terms  of  common  law,  444. 

Bradstreete,  Simon,  deputy  governor  of 
Massachusetts,  103. 

Bragg  v.  The  Sloop  Dove,  222-3. 

Brearly,  David,  views  of,  respecting  equal 
suffrage  of  States,  174;  urged  attendance 
of  New  Hampshire  at  Federal  Conven- 
tion, 175,  176;  member  court,  Pennsyl- 
vania v.  Connecticut,  232,  233 ;  declared 
New  Jersey  legislative  act  inconsistent  with 
common  law,  349,  363. 

Brewer,  Mr.  Justice,  on  division  of  sov- 
ereign powers,  335 ;  on  moot  cases,  434. 

Briggs  v.  The  Light  Boats,  454,  461. 

Bright,  General,  and  Olmstead's  Case,  222 
note. 

Briscoe  v.  Bank  of  Kentucky,  457. 

British    South    African   Company,   65. 

Brown  v.  United  States,  383. 


Buckle,  H.  T.,  on  Declaration  of  Inde- 
pendence,  31. 

Bunker    Hill,    battle   of,   23,   28,    129. 

Burgesses,  House  of,  in  Virginia,  23,  74,  83, 
83  note;  in  Maryland,  83  note;  colonial 
assemblies  sometimes  called,   132. 

Burke,  Edmund,  on  general  study  of  law 
in   colonies,   439. 

Butler,  Pierce,  motion  respecting  procedure 
in  Federal  Convention,  155  ;  on  three-fold 
division  of  powers,  165;  views  of,  re- 
specting inclusion  of  slaves  in  rule  of 
representation,  187 ;  on  distinct  commer- 
cial   interests   of    States,    189. 

Buvot  v.  Barbut,  448. 

By-laws,  of  corporations,  67-8;  in  excess  of 
grant  of  power,  347,  349. 

Cairns,  Lord,  on  foreign  States  suing  in 
English  courts,  463. 

Calder  v.  Bull,  439. 

Callanan  v.  Judd,  433-4. 

Calvin's   Case,   95,   96. 

Campbell  v.  Hall,  94,  99,  347-8. 

Canada,  a  self-governing  dominion,  11;  con- 
quest of,  by  Great  Britain,  13,  24. 

Captures,  provision  for,  in  Randolph  plan, 
159.  See  also  Court  of  Appeals  in  Cases 
of  Capture. 

Carteret,  Sir  George,  grant  of  New  Jer- 
sey to,   116. 

Cawston  and  Keane,  on  early  chartered  com- 
panies, 65    et  seq. 

Chalmers,  George,  on  union  of  colonies,  9 
note;  on  Constitution  of  Virginia,  77. 

Chancery,  Court  of,  ordered  enforcement  of 
agreement  in  case  of  Penn  v.  Lord  Balti- 
more, 101,  420;  under  State  constitutions, 
139. 

Charles  I,  voluntary  submission  of  Narra- 
gansett  Indians  to  government  of,  103; 
charter  of  1632  to  Lord  Baltimore,  123 

Charles  II,  proclamation  of,  inviting  settlers 
to  Jamaica,  95:  charter  of  1664  to  Duke 
of  York,  116,  122,  123. 

Charleston,  seat  of  representative  govern- 
ment in   South  Carolina,  85  note. 

Chartered  Companies.  See  Trading  Com- 
panies. 

Charters,  Massachusetts  and  Connecticut  set- 
tlers originally  without,  5 ;  foundation  of 
American  Constitution,  64 ;  colonial  char- 
ters and  charters  of  English  trading  com- 
panies, 64  et  scq.;  two  kinds  of,  66;  legis- 
lation in  excess  of  grants  of,  65,  83,  84, 
97,  99,  119-21;  erected  bodies  of  indi- 
viduals into  a  corporation,  65,  68;  of  1600, 
to  East  India  Company,  64,  69-70  71,  73, 
76;    of    1606,    to    London    and    Plymouth 


582 


INDEX 


Companies,  70-1,  77;  of  1609  to  London 
Company,  71-2,  77 ;  separation  of  London 
and  Plymouth  Companies  under,  77 ;  of 
1612,  to  London  Company,  72-3,  79;  of 
1620,  to  Plymouth  Company,  77-9;  of 
1028-9,  79-82;  new  instruments  of  govern- 
ment a  reversion  to,  84;  Constitution  a 
charter,  84;  declared  colonists  British  sub- 
jects, 90;  influence  of,  on  State  constitu- 
tions, 130-2 ;  governments  more  perfect 
under  constitutions  than  under,  139;  of 
Connecticut,  84  note,  103,  119,  121,  131, 
348;  of  Maryland,  121,  121  note,  122,  123; 
of  Massachusetts,  65,  79-84,  84  note,  131, 
132;  of  New  York,  86  note;  of  North 
Carolina,  86  note ;  of  Pennsylvania,  86 
note,  122,  123;  of  Rhode  Island,  85 
note,  103,  105,  131 ;  of  Virginia,  70  et  seq., 
83. 

Chase,  Chief  Justice,  on  division  of  sov- 
ereign powers,  334-5,  370 ;  on  duty  of  presi- 
dent regarding  acts  of  Congress,  383-6. 

Chelmsford,  Lord  Chancellor,  on  foreign 
States  suing  in  English  courts,  463. 

Cherokee  Nation  v.  Georgia,  387-9,  401. 

Chesapeake  Bay,  interest  of  various  States 
in   navigation   of,   55-6,   145 

Chicago  and  Grand  Trunk  Railway  Com- 
pany  v.   Wellman,   434. 

Chisholm  v.  Georgia,  333,  429,  430,  431,  442, 
465. 

Circuit  Courts  of  the  United  States,  organ- 
ized in  pursuance  of  the  judiciary  act  of 
Sept.  25,  1789,  350;  powers  of,  strictly 
judicial,   350   ct  seq. 

Circuit  Court  for  District  of  New  York, 
opinion  of,  respecting  extent  of  judicial 
powers,  350. 

Circuit  Court  for  District  of  North  Caro- 
lina, opinion  of,  respecting  extent  of  ju- 
dicial   powers,    351-2. 

Circuit  Court  for  District  of  Pennsylvania, 
case  of  The  Active  before,  222,  222  note; 
opinion  of,  respecting  extent  of  judicial 
powers,  350-1  ;  opinion  of,  respecting  un- 
constitutionality of  an  act  of  Congress, 
365 ;  declared  an  act  of  Pennsylvania  con- 
trary to   its   constitution,  365-6. 

Citizen,  suit  of,  against  a  State,  102,  465. 

Clafflin  v.  Houseman,  415-16. 

Claims,  Court  of,  appeals  from,  to  Supreme 
Court,  356,  360-1,  431-2;  governed  by  com- 
mon law,  444;  United  States  may  be  sued 
in,    465;    jurisdiction    of,   465. 

Clark  v.   Barnard,  458-9. 

Clark's   Case,   344. 

Clinton,  George,  opposed  to  Constitution, 
314. 

Clinton,     Governor,     letter     of     Board     of 


Trade  to,  respecting  Massachusetts-Rhode 
Island   boundary,    119   note. 

Coercion  of  States,  Hamilton  on,  55  ;  Madi- 
son on,  165;  and  laws  operating  directly 
on  individuals,  202,  279  -el  seq.;  provision 
for,  Randolph  plan,  158,  203 ;  provision 
for,  Patterson  plan,  178,  203;  considera- 
tion of,  in  Federal  Convention,  203  et  seq.; 
coercion  of  law  v.  coercion  of  force,  279 
et  seq.;  Chief  Justice  Taney  on  distinc- 
tion between  judgment  against  an  individ- 
ual and  against   a   State,  453. 

Cohens   v.  Virginia,  409-12,  416,   428. 

Coke,  Sir  Edward,  first  Virginia  charter 
drafted  by,  70;  on  judicial  power  of  King, 
345-6. 

Colden,  Cadwallader,  member  Massachusetts- 
New  Hampshire  boundary  commission,  119 
note. 

Colepepper,  Lord,  and  two  Houses  of  As- 
sembly in   Virginia,  76,  84  note. 

Collector  v.  Day,  335,  368,  369. 

Colonial  Laws,  right  to  make,  claimed  by 
colonists,  97;  in  excess  of  charter,  97  et 
seq.,  119  et  seq. 

Colonies,  early  plans  for  union  of,  6  et 
seq.;  English  common  law  in,  15,  25,  90, 
91,  92,  97-8;  colonial  views  of  relations  of, 
with  Great  Britain,  15,  22;  efforts  of,  for 
reconciliation  with  Great  Britain,  16,  18, 
23,  27,  28,  29;  independence  declared  by, 
22  ct  seq.;  claimed  right  of  local  self- 
government,  22 ;  charters  of,  22,  64  et 
seq.;  a  report  on  the  rights  and  griev- 
ances of,  24-6;  trade  and  intercourse  with 
Great  Britain  prohibited  by,  26;  28;  Tax- 
ation of  Colonies  Act,  28;  a  body  politic, 
34;  union  of,  under  Articles  of  Confed- 
eration, 40  ct  seq  ;  divided  into  two  sec- 
tions by  charter  of  1606,  70-1 ;  distinction 
between  northern  and  southern,  71,  77,  83; 
courts  and  assemblies  in,  72  ct  seq.;  dis- 
tinguished for  system  of  government,  76-7; 
representative  assemblies  in,  82-3;  conflict 
of  interests  of,  with  those  of  Great  Brit- 
ain, 99;  boundary  disputes  between,  100, 
101,  109,  118  et  seq.;  dependent  on  Crown, 
101  ;  independent  of  one  another  before 
Revolution,  125 ;  three  branches  of  gov- 
ernment in,  132,  137-9;  independence  of, 
recognized  by  Great  Britain,  148. 
Commerce,  state  of,  under  Confederation,  49, 
54-5,  145,  166;  demands  of,  considered  by 
Annapolis  Convention,  145-6,  166;  with  for- 
eign nations,  to  be  regulated  by  Congress, 
166,  177,  190;  southern  States  and  regu- 
lation of,  188-9;  two-thirds  vote  of  legis- 
lature to  regulate,  188 ;  distinct  commer- 
cial  interests  of   States,   188. 


INDEX 


583 


Commissioners  of  New  England  Confedera- 
tion, appointment  of,  7;  powers  and 
duties  of,  7,  8;  election  of  president  of, 
8 ;  authorized  to  sign  agreement  on  May 
19/29,  1643,  9:  appeal  of  Rhode  Island 
from  decision  of,   102. 

Committee  on  Appeals,  Congressional,  es- 
tablished by  Congress  under  Confedera- 
tion, 218;  defects  of,  pointed  out  by  mer- 
chants and  citizens  of  Philadelphia,  219; 
appeal  to,  case  of  The  Activ-e,  220,  221 ; 
superseded  by  Supreme  Court,  222 ;  cases 
before,  transferred  to  Court  of  Appeals  in 
Cases  of  Capture,  224 ;  analysis  of  the 
work  of,  224. 

Committee  of  Detail,  projects  for  discussion 
in  Federal  Convention  referred  to,  160; 
Patterson,  Randolph  and  Pinckney  plans 
referred  to,  164,  251 ;  organization  and 
constitution  of,  260;  report  of,  260;  mem- 
bers of,  260:  draft  of  Constitution  pre- 
sented by,  260  ■et  seq.;  Rutledge,  chairman 
of,  261;  provisions  of  draft  respecting 
judiciary,  261-3;  268  et  seq.;  provision  of, 
for  government  per  interim,  321  ;  provi- 
sion of,  respecting  jurisdiction  of  Supreme 
Court,  374;  text  of  Randolph  plan  as  pre- 
sented to,  529-32;  text  of  report  of,  532-40. 

Committee  on  Rules  and  Orders,  establish- 
ment and  functions  of,  153;  rules  and 
orders,    154-5,    156. 

Committee  of  the  States,  report  of,  on  com- 
promise in   State  equality  dispute,  180. 

Committee  on  Style,  modifications  of,  to 
article  respecting  judicial  power  of  the 
United  States,  264,  273 ;  and  expression 
"  supreme  law  of  the  land,''  277,  303 ;  mem- 
bers of,  277,  277  note;  text  of  Constitu- 
tion sent  to,  541-51 ;  text  of  Constitution 
reported  by,  552-69. 

Committee  on  Unfinished  Portions,  question 
of  appointment  of  ambassadors  and  judges 
referred  to,  274. 

Committee  of  the  Whole,  Pinckney  plan  re- 
ferred to,  163;  Randolph  plan  referred  to, 
163,  250,  252,  254,  255,  256,  257 ;  report  of, 
on  Randolph  plan,  176,  177,  524-5;  Pat- 
terson plan  referred  to,  257;  general  prin- 
ciples of  Constitution  considered  in,  259-60. 

Committee  for  Hearing  Appeals  from  the 
Plantations,  composition  and  functions  of, 
100 ;  appeal  to,  from  colonial  courts,  100 ; 
and  petition  of  Holden  and  Green,  104  et 
seq  ;  and  case  of  Lechmere  v.  Winthrop, 
120,  348 ;  recommendation,  case  of  Penn  v. 
Baltimore,    124. 

Common  Law,  relation  of  to  colonies,  15,  25, 
90,  91,  92,  97-8;  terms  of,  in  Constitution, 
439;  a  general  study  in  colonies,  439;  lim- 


ited to  ciivl  cases,  441-2:  applicable  in  cases 
covered  by  special  legislative  act,  442;  in- 
terpretation of  terms  of,  442  et  seq.;  re- 
lation of.  to  admiralty  and  maritime  juris- 
diction, 447-9;  relation  of,  to  law  of 
nations,  447-9.  See  also  English  Common 
Law. 

Common  Pleas,  Courts  of,  English,  345-6; 
in  Philadelphia,  455-6. 

Commonwealth  v.  Caton,  363. 

Commonwealth  v.  Chapman,  445-6. 

Compact,  the  Mayflower  Compact,  3 ;  be- 
tween Virginia  and  Maryland,  49;  be- 
tween Pennsylvania  and  New  Jersey,  49 ; 
social  and  political,  134;  a  fundamental 
law,   135. 

Conciliatory  Resolution,  1775 ,  communicated 
to  colonies  by  Lord  North,  27 ;  rejected 
by   Congress,  28. 

Concord,   battle   of,  26,  28,   129. 

Confederates,  New  England,  expenses  and 
spoils  of  war  divided  among,  7;  admis- 
sion of  new  confederates  or  plantations, 
7;  business  referred  to,  by  commission- 
ers, 8;  provision  respecting  violation  of 
Articles  by  the,  8.  See  also  New  England 
Confederation  and  Commissioners  of  New 
England  Confederation. 

Confederation,  powers  vested  in,  exercised 
by  Congress,  42  et  seq.;  powers  renounced 
to,  by  States,  42-3;  composed  of  sov- 
ereign, free  and  independent  States,  45 ; 
state  of  commerce  under,  49,  54-5,  145,  166. 
See  also  Articles  of  Confederation. 

Congress  under  Confederation,  formation 
and  interests  of,  40;  question  of  large 
and  small  States  before,  41 ;  efforts  of, 
to  increase  land  values,  42;  powers  vi 
in,  42  et  seq  ;  appellate  jurisdiction  of, 
44;  Annapolis  Convention  unauthorized  by, 
56,  57;  resolution  of,  convoking  Federal 
Convention,  57-8;  resolution  of,  respecting 
prize  cases,  216  et  seq.;  resolutions  of,  re- 
specting relations  of  States,  221 ;  estab- 
lished permanent  Court  of  Appeal  in  Cases 
of  Capture,  223  et  seq.;  temporary  judicial 
commissions  appointed  by,  229  et  seq.;  ac- 
tion of,  respecting  Northwest  Territory, 
292-3,  292  note ;  to  continue  between  adop- 
tion of  Constitution  and  organization  of 
new  government»_321  ;  letter  transmitting 
Constitution   to,  570> 

Congress  under  Constitution,  powers  vested 
in,  43;  first  ten  amendments  to  Constitu- 
tion proposed  to  by  first,  46,  323 ;  enumera- 
tion of  general  powers  of,  165  et  seq.  ; 
commerce  with  foreign  nations  to  be  regu- 
lated by,  166,  177,  190;  acts  of,  supreme 
law  of  land,  178,  276-9,  303,  375;  power  of, 


584 


INDEX 


over  territories  until  their  admission  to 
union,  295;  power  of,  to  recognize  State 
governments  303  note,  380-2,  392;  to  pro- 
pose amendments  to  Constitution,  300  1; 
defined  extent  of  power  of  Supreme  Court, 
342 ;  act  of,  respecting  pensions,  350,  365 ; 
act  of,  authorizing  judges  to  adjust  claims 
under  treaty  with  Spain,  354;  act  of,  re- 
specting jurisdiction  of  Supreme  Court, 
366-8;  act  of,  respecting  drawing  of  lot- 
teries in  District  of  Columbia,  409.  See 
also  Legislative  Branch 

Congressional   Committee  on   Appeals.     See 
Committee  on  Appeals,  Congressional. 

Connecticut,  settlers  of,  4,  5;  Fundamental 
Orders  of,  4,  5;  member  of  New  Eng- 
land Confederation,  7;  represented  at  Al- 
bany Congress,  11 ;  governed  under  a  char- 
ter, 22;  charter  of,  84  note,  103,  119,  121, 
131,  348;  representative  assemblies  of,  84 
note,  96;  charter  provisions  of,  in  force 
after  Declaration  of  Independence,  84;  leg- 
islative power  of,  96,  97,  101,  119;  boundary 
disputes,  101-9,  114,  118,  231-4,  237,  292 
note;  Act  of  1699  respecting  settlement  of 
intestate  estates,  119  et  seq.,  348;  constitu- 
tion of,  131  ;  colonial  governor  of,  elected 
by  people,  138;  courts  of,  elected  by  col- 
onial authorities,  138;  delegates  of,  to 
Federal  Convention.  147,  152;  in  favor  of 
equal  representation  and  suffrage  of  States 
in  Senate,  179-80,  184;  claim  of,  to  North- 
west Territory,  292  note;  opposed  to  popu- 
lar ratification  of  Constitution,  305,  308. 

Conquest,  rights  of,  v.  rights  of  discovery, 
91,  92;  Blackstone's  interpretation  of,  92; 
laws   of,   93   note,   95. 

Constitution  of  the  United  States,  pre- 
scribes equal  representation  of  States,  11 ; 
a  compromise,  41,  46,  172,  332;  govern- 
ment under,  acts  directly  on  people  of 
States,  43;  powers  vested  in  union  by, 
43,  161,  165-8;  three-fold  division  of  gov- 
ernment a  principle  of,  45 ;  amendments 
to,  46,  137,  299  et  seq.,  323  et  seq.,  572-6; 
ratification  of,  46,  164,  301  et  seq.,  312, 
321-2;  Articles  of  Confederation  and  State 
constitutions  bases  of,  53,  131  ;  Articles 
of  Confederation  replaced  by,  53,  58,  147, 
161;  adoption  of,  58;  a  result  of  progres- 
sive history,  64;  colonial  charters  founda- 
tion of,  64;  laws  inconsistent  with,  65,  101, 
200,  361  ;  judicial  power  conferred  by, 
65,  102,  108,  119  note,  121,  125,  126, 
190,  211  12,  374-5,  398  et  seq..  427,  429, 
430,  438  et  seq.,  453,  454:  a  charter  of 
union,  84;  legislative  powers  conferred  by, 
137,  172  et  seq.,  280,  342,  376,  467;  instruc- 
tions   respecting,   to   delegates   to   Federal 


Convention,  150-3;  Randolph  plan  basis  of, 
158,    other   plans    for,    163-4;    drafted    by 
Committee  of  Detail,  164,  260,  532-40 ,  Tin- 
Federalist,   classic   exponent   of,    164,   315; 
international    law    in,    167;    established    a 
government  of  laws  and  not  of  men,  168; 
seat  of  government  under,  168;  established 
a  government  of  limited  powers,  168;  su- 
premacy   of,    enforced,   case    of    The   Ac- 
tive, 222  note ;  "  supreme  law  of  the  land," 
276-9,  302  et  seq.,  375;   devised  primarily 
for  the  thirteen  confederated  States,  290; 
officers  of  States  and  United  States  bound 
by  oath  to  support,  304;  derives  its  validity 
from  ratification  of  the  States,  309;  gov- 
ernment   under,    begun,    322;    ratified    by 
State  conventions,  331  ;  Madison's  letter  to 
Hayne  respecting,  335-7;   text   of,  502-11, 
552-69;     transmitted     to     Congress,     570; 
transmitted  to  States   for  ratification,  571 
Constitutions,   British   constitution,   64 ;   gov- 
ernment  more  perfect  under,   than   under 
charters,   139. 
Constitutions,    State,    three-fold    division    of 
government   in,   45,   133   et   seq.;   influence 
of    colonial    charters    on,    130-2;    bills    of 
rights  prefixed  to,  137;  governments  under, 
139-40;    courts    under,    139;    the    Constitu- 
tion of  the  United  States  given  precedence 
over,  276,  302  et  seq.,  375 ;   of   Arkansas, 
457-8;   of   Connecticut,   131  ;   of   Delaware, 
126;    of    Maryland,    196,    307;    of    Massa- 
chusetts,  131   et  seq..  138,  156,  201,  274  et 
seq.;  of  New  Jersey,  349;  of  New  York, 
136,   137,  201;   of   Pennsylvania,   136,  365; 
of  Rhode  Island,  131,  380;  of  South  Caro- 
lina,   198;   of   Vermont,  290;  of   Virginia, 
76-7,  133. 
Constitutional  Convention.    See  Federal  Con- 
vention. 
Continental    Congress,    First,    1774,    a    fore- 
runner of,   in    Penn's   plan   of   union,   10; 
foresaw  necessity  for  some   form  of  gov- 
ernment,   129-30;    Franklin's    second    plan 
presented  to,  15 ;  met  at  Philadelphia,  23 ; 
delegates   to,   23,   24;    Randolph    president 
of,  24;  Declaration  and  Resolves  of,  24-6; 
views   of   members    respecting   Navigation 
Acts   and   Acts   of   Trade,   26;    advocated 
association    to    cut    off    trade    with    Great 
Britain,  26. 
Continental  Congress,  Second,  independence 
declared   by,   22,   29   et  seq.;   recommends 
adoption    of    some    form    of    government, 
28-9,  129  ct  seq.;  met  at  Philadelphia,  26, 
129;    president    of,    26;    election    of    com- 
mander-in-chief by,  26-7;  adopted  Declara- 
tion of  the  Causes  and  Xecessity  of  Tak- 
ing up  Arms,  27;   efforts   of,  at  concilia- 


INDEX 


585 


tion  with  Great  Britain,  27  et  seq.;  doc- 
trines of,  35  ;  action  of,  respecting  matters 
of   prize,   21617. 

Consuls,  how  nominated  and  appointed,  199, 
261-2;  power  of  judiciary  to  pass  upon 
cases  affecting,  212,  262,  263,  277,  398, 
403,  417. 

Cope,  Henry,  member,  Massachusetts-New 
Hampshire  boundary  commission,  119  note. 

Copyrights,  power  over,  given  to  Congress, 
166. 

Corporations,  charters  to,  65,  68 :  character- 
istics of,  66-7;  defined,  67;  by-laws  of, 
67,  68. 

Council  for  the  Government  of  Foreign 
Plantations,  99. 

Counterfeiting,  power  of  Congress  to  pun- 
ish,  166. 

Court  of  Appeals  in  Cases  of  Capture,  first 
permanent  tribunal  of  States,  210  et  seq.; 
advocated  by  Washington,  216-18;  estab- 
lished by  Congress  under  Confederation, 
223;  judges  of,  223;  cases  before  Con- 
gressional Committee  on  Appeals  trans- 
ferred to,  224;  analysis  of  the  work  of, 
224;  cases  submitted  to,  224  note;  Jameson 
on  influence  of,  225 ;  an  origin  of  Su- 
preme Court,  225,  244 ;  purpose  of,  to  ob- 
tain uniformity  of  decision  in  matters  of 
prize,  244;  jurisdiction  of,  273,  447;  ju- 
dicial power  of  United  States  extended  to 
cases   decided   by,   447. 

Courts,  under  Confederation,  44-5,  214  et 
seq.,  229  et  seq.,  247 ;  power  of  English 
courts  respecting  legislation  in  excess  of 
charters,  65 ;  of  East  India  Company,  69- 
70;  colonial,  72  et  seq,  100,  138,  213,  218; 
in  States,  138,  139,  213;  relation  of  Fed 
eral  and  State  courts,  304,  413-16 ;  a  court 
defined,  400;  right  of  Congress  to  bring 
cases  to  cognizance  of,  432.  .SV^  also  Su- 
preme Court,  Judicial  Power. 

Coyle  v.  Smith,  294. 

Credit.     See   Bills   of   Credit. 

Crown  of  England,  Pilgrims  without  char- 
ter from  3,  5;  disapproved  Albany  plan 
of  union,  14;  petitioned  by  colonists  for 
redress  of  grievances,  23,  27 ;  Jamaica,  part 
of  possessions  and  revenues  of,  92,  93; 
legislative  powers  of,  94,  95;  prerogatives 
of,  99;  colonies  dependent  on,  101;  in- 
terest of,  in  colonial  disputes,  101  et  seq.; 
certain  colonial  governors  and  courts  ap- 
pointed by,  138;  territory  ceded  to,  by 
Treaty  of   Paris,  292. 

Cuba,  title  of,  to  Isle  of  Pines,  379  note. 

Cumberland,  George  Earl  of,  East  India 
Company  charter  of   1600,  granted  to,  69. 

Curtis,  Mr.  Justice,  on  right  of  Congress  to 


bring  cases  within  cognizance  of  courts, 
431-2. 

Currency,  to  be  issued  by  Congress,  43. 

Cushing,  Thomas,  delegate,  First  Continental 
Congress,  23. 

Cushing,  Justice,  member,  New  York  Cir- 
cuit Court,  350;  commissioner,  case  of 
United  States  v.  Todd,  353. 

Davie,  William  R.,  member,  compromise  com- 
mittee, Senate  suffrage  controversy,  185. 

Davis  and  Cargo,  The  Schooner,  461. 

Davis,  J.  C.  Bancroft,  cited,  regarding  work 
of  committees  and  Court  of  Appeals,  224, 
224  note. 

Day,  Mr.  Justice,  on  Root's  instructions  for 
government  of  the  Philippines,  330;  on 
extra-judicial  opinions  of  Supreme  Court 
judges,  433 ;  on  interpretation  of  terms  of 
common  law,  443. 

Dayton,  Jonathan,  presence  at  Federal  Con- 
vention urged,  176;  considered  provision 
for  settling  disputes  between  States  un- 
necessary,   269. 

Dean,  Silas,  negotiated  treaty  with  France, 
1778,  35. 

Declaration  and  Resolves  of  First  Conti- 
nental Congress,  1774,  adopted,  24 ;  sum- 
mary of,  24-6 ;  extract  from,  on  English 
law   in   colonies,  98. 

Declaration  of  the  Causes  and  Necessity  of 
Taking  up  Arms,  1775,  adopted  by  Sec- 
ond  Continental   Congress,   27. 

Declaration  of  Independence,  some  form  of 
general  government  necessitated  by,  15; 
justified,  22;  conditions  which  occasioned, 
22;  Richard  Lee's  motion  respecting.  29  et 
seq.,  40,  135,  217;  drafting  committee  of, 
29;  draft  of,  presented  by  committee,  30; 
signed  and  published,  30;  summary  of,  and 
comments  on,  30  et  seq. :  drafted  by 
Thomas  Jefferson,  30,  33,  135 ;  ideas  and 
language  of,  derived  from  English  phil- 
osophers, 25-6;  French  influence  on,  35-6; 
vested  sovereignty  in  the  people,  133,  308; 
government  derives  powers  from  consent 
of  governed,  140;  declares  colonies  free 
and  independent  States,  455 ;  text  of, 
492-4. 

Declaration  of  Rights.     See  Bill  of  Rights. 

De  Lancey,  James,  member,  Massachusetts- 
New  Hampshire  boundary  commission,  119 
note. 

Delaware,  excluded  from  Albany  plan  of 
union,  11  ;  interest  of,  in  navigation  of 
Chesapeake  Bay,  56 ;  represented  at  An- 
napolis Convention,  56,  146;  appointed 
delegates  to  Federal  Convention,  56,  146; 
representative  assemblies  in,  85  note;  char- 


586 


INDEX 


ter  of,  86  note :  disputes  between  Penn 
and  Lord  Baltimore  respecting  territory 
of,  121-5;  constitution  of,  126;  court  of 
appeals  in,  126,  139:  instructions  of,  to 
delegates  to  Federal  Convention,  150-2,  153 ; 
insisted  otl  equal  vote  of  States  in  both 
branches  of  legislature,  151-2,  153,  173-4, 
184,  185 ;  vote  of,  respecting  popular  rati- 
fication of  Constitution,  305,  308;  ratifi- 
cation of  Constitution  by,  309,  310,  571 
note;  ratification  of  first  ten  amendments 
to  Constitution  by,  572  note. 

De  Lovio  v.  Boit,  447  note. 

Dent,  Air.  Justice,  "supreme  court"  defined 
by,  400. 

Detail,  Committee  of.  See  Committee  of 
Detail 

Dickerson,  Oliver  Morton,  on  settlement  of 
colonial  boundary  disputes,  118  note,  119 
note. 

Dickinson,  John,  draft  of  Articles  of  Con- 
federation presented  by,  18,  40,  41-2,  237; 
drafted  conciliatory  petition  to  King,  27; 
chairman  of  committee  to  report  form 
of  confederation,  40;  delegate  of  Delaware 
to,  and  chairman  of  Annapolis  Conven- 
tion. 56:  Delaware  delegate,  Federal 
Convention,  151,  237 ;  compromise  motion 
of,  respecting  election  of  senators  by  State 
legislatures.  173,  179,  180:  in  favor  of 
equal  suffrage  of  States,  177;  president 
of  Pennsylvania,  233;  member  of  court, 
South  Carolina-Georgia  boundary  dispute, 
237 ;  refused  to  sign  Declaration  of  In- 
dependence, 237;  opposed  to  limitation  of 
judicial  power  of  United  States,  252; 
views  of,  respecting  institution  of  national 
judiciary  by  legislature,  253:  proposal,  re- 
specting tenure  of  judges,  263:  motion  of, 
respecting  appellate  jurisdiction  of  Su- 
preme Court,  273. 

Dickinson,  Philemon,  member  of  court, 
South  Carolina-Georgia  boundary  dispute, 
237. 

Disarmament,  States  voluntarily  submitted 
to,  210. 

Discovery,  right  of,  V.  right  of  conquest,  91 ; 
true  basis  of  possession,  92;  laws  of  con- 
quest, 93  note. 

Disputes.    See  Boundary  disputes. 

District  of  Columbia,  seat  of  government 
under  Constitution,  168;  act  of  Congress, 
permitting  the  drawing  of  lotteries  in,  409. 

Doderidge,  Sir  James,  drafted  first  Virginia 
charter,  70. 

Drafting  Committee  of  Declaration  of  Inde- 
pendence, 29,  30. 

Drayton's  Articles  of  Confederation,  treaty- 
making  provision  in,  198  note. 


Duane,  James,  District  Judge,  New  York 
Circuit  Court,  350;  member  of  court,  South 
Caroline-Georgia  boundary  dispute,  237. 

Duties,  right  of  States  to  lay.  renounced,  43 ; 
power  of  Congress  to  collect,  166 ;  pro- 
vision respecting,  Patterson  plan.  177. 

Dyer,  Ehphalet,  agent,  case  of  Pennsylvania 
v.  Connecticut,  232. 

East  India  Company,  charters  of,  64,  69-70, 
71.  73,  76:  a  joint-stock  company,  68; 
origin  of  Empire  of  India,  70;  organization 
of.  70. 

East  Jersey.    See  New  Jersey. 

Eastland  Company,  a  regulated  company,  68. 

Edward  VI,  statute  of,  against  buying  offices 
concerning  the  administration  of  justice,  92. 

Elizabeth,  Queen,  charter  to  George,  Earl  of 
Cumberland,  69,  70.  71 ;  charter  to  East 
Indian   Company,  73 

Elliot,  Andrew,  member  New  York-New  Jer- 
sey boundary  commission.  1767,  116 

Elliot,  Jonathan,  on  debates  in  the  Federal 
Convention,  53. 

Ellsworth,  Oliver,  Connecticut  delegate,  Fed- 
eral Convention,  152;  motion  of,  respecting 
term  "  national "  in  relation  to  the  legis- 
lature, 161  ;  in  favor  of  equal  suffrage  of 
States,  176;  on  necessity  of  maintaining 
the  State  governments,  180,  184 ;  urged 
equality  of  suffrage  in  Senate,  179-80,  181-2, 
184 ;  member  compromise  committee,  Sen- 
ate suffrage  controversy.  185;  views  of, 
respecting  principle  of  coercion,  206,  281-2; 
member,  Committee  of  Detail,  260 ;  in  fa- 
vor of  ratification  of  Constitution  by  State 
legislatures.  305,  307,  308 ;  on  determination 
of  constitutionality  by  Supreme  Court.  364; 
chairman,  drafting  committee  of  Judiciary 
Act,  1789,  403,  414;  proposed  investing  ju- 
diciary with  political  functions,  418;  opin- 
ion of,  respecting  inclusion  of  law  of 
crimes  in  common  law,  441. 

Embassies,  to  be  sent  and  received  by  Con- 
gress, 43.    See  also  Ambassadors. 

Endicott,  John,  director  of  "London's  Plan- 
tation in  Massachusetts  Bay  in  New  Eng- 
land," 81. 

England.  See  Great  Britain  and  Crown  of 
England. 

English  Common  Law,  indelible  allegiance  a 
doctrine  of,  90;  relation  of,  to  colonies, 
90  et  seq.;  application  of,  to  Jamaica,  92-3; 
early  colonists  not  familiar  with,  98;  doc- 
trine of  primogeniture  under,  119-20;  Con- 
necticut Act  of  1699  declared  contrary  to, 
121;  influence  of,  on  nature  of  judicial 
power  in  Constitution,  343. 

English  subjects,  colonists  declared  by  char- 


INDEX 


587 


ters  to  be,  90;  discovery  by,  92;  bound 
by  acts  of  Parliament,  93. 

Erstern,  The,  224  note. 

Executive,  of  States,  136,  138;  differences  of 
opinion  respecting,  in  Federal  Convention, 
195;  a  single  executive,  195;  term  of  office, 
195-6;  system  of  election  of,  196-7;  his 
oath  of  office,  197;  his  powers,  197,  324; 
relations  of,  with  legislative  department, 
197,  200  et  seq.,  power  of,  respecting 
treaties,  197-9;  vested  with  exercise  of 
political  power,  376  et  seq.  See  also  Presi- 
dent, Vice-President. 

Executive  Power,  under  Articles  of  Confed- 
eration, 43  et  seq.,  160,  341 ;  of  New  Eng- 
land Company,  72;  of  Privy  Council,  99  j 
provisions  respecting,  in  charters,  132-3  ;  in 
State  constitutions,  136,  138;  in  Constitu- 
tion, 138,  342;  in  Randolph  plan,  158-9, 
161,  194-5,  199,  200,  250;  Sir  Henry  Maine 
on,  280;  in  Patterson  plan,  178. 

Experiment  v.  The  Chester,  224  note. 

Federal  Convention,  Rhode  Island  not  rep- 
resented in,  7,  147 ;  question  of  large  and 
small  States  in,  41,  148,  151-3,  172  et  seq., 
250,  255  et  seq.,  300;  revision  of  Articles 
of  Confederation  original  purpose  of,  47, 
53,  57,  58,  130,  247;  leadership  of  Madison 
in,  48;  replaced  Articles  of  Confederation 
by  Constitution,  53,  147 ;  recommended  by 
Annapolis  Convention,  56-7,  146,  150, 
166;  recommended  by  Congress,  57-8,  146- 
7;  drafted  Constitution,  84,  130;  New  York 
State  constitution  a  source  of  proposals 
in,  136-7;  differences  of  opinion  in,  re- 
specting question  of  executive  power,  138, 
195;  method  of  choosing  judges  consid- 
ered by,  138;  met  at  Philadelphia,  147-8; 
organization  of,  148  9 ;  an  international  con- 
ference, 129,  466  ;  instructions  to  delegates, 
150-3,  173;  a  conference  of  twelve  States, 
153;  committee  on  rules  and  orders,  153-5; 
international  aspects  of,  155-6;  opening  of 
the  Convention,  156;  Randolph's  fifteen  res- 
olutions, 158-60;  change  of  purpose  of, 
160;  other  "plans,"  163-4;  question  of 
"  national  "  v.  "  federal  "  government  be- 
fore, 164-5;  summary  of  powers  granted 
to  union  by,  165-8;  spirit  of  compromise 
in,  172:  duties  of  committees  of,  254;  con- 
templated union  of  more  than  thirteen 
States,  290;  insisted  on  separation  of  politi- 
cal and  judicial  powers,  418:  text  of  let- 
ter of,  transmitting  Constitution  to  Con- 
gress, 570.    See  also  Committees. 

Federal  Court  of  Appeals.  See  Court  of 
Appeals  in  Cases  of  Capture. 

Federalist,  The,  classic  exponent  of  the  Con- 


stitution, 164,  274-5,  362;  Hamilton,  Madi- 
son and  Jay,  authors  of,  164,  274 ;  on  in- 
dependence of  Vermont,  241 ;  on  lack  of 
judicial  power  under  Confederation,  247- 
8 ;  on  sovereign  immunity  from  suit,  248-9 ; 
on  power  of  Supreme  Court  to  declare 
laws  unconstitutional,  362,  363-4;  on  con- 
current jurisdiction  of  State  and  Federal 
Courts,    414-15. 

Field,  Mr.  Justice,  on  terms  "cases"  and 
"  controversies,"  429-30 ;  on  immunity  from 
suit  and  extent  to  which  it  may  be  re- 
nounced,   459-60. 

Fleming,  William,  member  court,  Massachu- 
setts-New  York   boundary   dispute,  235. 

Foreigners,  cases  affecting,  in  provisions  of 
Randolph   plan,   159. 

Foster  v.  Neilson,  376-8,  379,  379  note.  382. 

Frame  of  Government,  1682  (Pennsylvania), 
representative  assembly  under,  85  note. 

Framework  Knitters  v.  Green,  Master  and 
Company   of,   67. 

France,  alliance  of  American  colonies  with 
Indians  in  case  of  war  with,  11;  treaty 
of,  with  Great  Britain  at  close  of  Seven 
Years'  War,  14,  24,  94,  292,  347;  alliances 
of,  with  United  States,  34-5,  45 ;  pre- 
tensions of,  to  lands  around  Green  Moun- 
tains, 238;  in  command  of  Lake  Cham- 
plain,  23S;  desired  union  of  American 
States,  293 ;  territory  in  Louisiana  ceded 
to,  by  Spain,  376-7;  ceded  territory 
to  United  States  by  treaty  of  1803, 
377. 

Franklin,  Benjamin,  Pennsylvania  delegate, 
Albany  Congress,  11  ;  indignities  suffered 
by,  at  hands  of  British,  18;  views  of,  re- 
specting conciliation  with  Great  Britain, 
18;  member,  drafting  committee,  Declara- 
tion of  Independence,  30,  30  note,  35:  first 
minister  to  France,  35;  negotiated  treaty 
with  France,  1778,  35 ;  in  favor  of  single 
legislative  house,  136,  172;  president  of 
Pennsylvania,  148;  considered  in  connec- 
tion with  presidency  of  Federal  Conven- 
tion, 149;  personality  in  Federal  Conven- 
tion, 149;  remarks  on  dispute  respecting 
equal  suffrage  in  Senate.  182;  member 
compromise  committee,  Senate  suffrage 
controversy,  185;  on  conflicting  interests  in 
Federal  Convention,  333-4,  467 ;  on  use  of 
Vattel's  work  in  Continental  Congress, 
439-40. 

Franklin  Plan,  1754,  why  rejected,  6,  14; 
presented  to,  and  adopted  by  Albany  Con- 
gress, 11 ;   summary  of,   11-14. 

Franklin's  Plan,  1775,  laid  before  Contin- 
ental Congress,  15-16;  summary  of,  16- 
17;  not  adopted,  17;  Dickinson's  draft  of 


588 


INDEX 


Articles  of  Confederation  similar  to,  18, 
41-2. 

Franklin,  William  Temple,  proposed  as  sec- 
retary, Federal  Convention,  149;  not 
elected.   149-50. 

French  and  Indian  War,  Washington  in,  14; 
expenses  of  New  York  in,  115;  States 
parties  in,  213. 

French  Revolution,  and  influence  of  Rous- 
seau, 31. 

Frothingham,  Richard,  on  Franklin's  first 
plan  of  union,  6:  on  principle  underlying 
New  England  Confederation,  9  note;  on 
representative  assemblies,  83-6  notes. 

Fuller,  Mr.  Chief  Justice,  on  case  involving 
action  of  political  departments  of  govern- 
ment, 379  note;  opinion  of,  in  case  in- 
volving distinction  between  suits  of  a  civil 
nature  and  suits  coming  under  law  of 
nations,  440  note. 

Fundamental  Orders  of  Connecticut,  first 
written  constitution,  4;  preamble  to,  5; 
provisions   of,   5. 

Garcia  v.  Lee,  379,  379  note. 

General  Assemblies,  of  East  India  Company, 
70;  of  Virginia,  74,  75,  76;  of  Massachu- 
setts, 80,  82-3;  of  Grenada,  94,  96,  247; 
of  Jamaica,  95;  of  Connecticut,  96;  of 
New  York,  137. 

George  III,  grievances  suffered  by  colonies 
at  hands~  of,  30;  proclamation  of,  respect- 
ing General  Assembly  of  Grenada,  94,  96, 
247. 

Georgia,  excluded  from  Albany  plan  of  union, 
11;  not  represented  at  First  Continental 
Congress,  23,  24;  represented  at  Second 
Continental  Congress,  26;  wars  and  treat- 
ies of,  with  Indians,  49;  appointed  dele- 
gates to  Federal  Convention,  57,  146;  rep- 
resentative assemblies  in,  86  note;  instruc- 
tions to  delegates,  Federal  Convention,  152; 
vote  divided  on  question  of  equal  suf- 
frage of  States  in  Senate,  176,  176  note, 
184;  opposed  to  equality  of  States  in  Sen- 
ate, 185;  in  favor  of  popular  ratification 
of  Constitution,  305,  308;  ratification  of 
Constitution    by,   310,   571    note. 

Georgia  v.  Stanton,  386-9. 

Germans,  customs  of,  depicted  by  Tacitus,  76. 

German    States,  customs   union   in,   55. 

Gerry,  Elbridge,  on  representation  of  States 
in  two  branches  of  legislature,  180;  fa- 
vored compromise,  Senate  suffrage  contro- 
versy, 184-5  ;  chairman  compromise  commit- 
tee, Senate  suffrage  controversy,  185 ; 
urged  establishment  of  prize  jurisdiction 
in  Massachusetts,  216;  proposed  a  bill  of 
rights   to   Constitution,   328;    in    favor   of 


separation  of  judicial  and  other  powers, 
314,   418,   419. 

Gibbons  v.  Ogden,  59-60. 

Gladstone,  Wm.  E.,  statement  of,  regard- 
ing British  and  American  constitutions, 
64. 

Gloucester,  The,  224  note. 

Goldsborough,  Robert,  member  of  court, 
South  Carolina-Georgia  boundary  dispute, 
237. 

Gordon  v.  United  States,  356-60,  453. 

Gorham,  Nathaniel,  on  commercial  motive 
to  union  of  Eastern  States,  188,  189-90; 
called  attention  of  Federal  Convention  to 
method  of  appointment  of  public  officials 
in  Massachusetts,  199;  in  favor  of  appoint- 
ment of  Supreme  Court  judges  by  execu- 
tive with  consent  of  the  Senate,  258;  mem- 
ber. Committee  of  Detail,  260;  considered 
special  provision  for  settling  suits  between 
States  unnecessary,  269 ;  in  favor  of  sep- 
aration of  judicial  and  other  powers,  418, 
419. 

Government,  under  Constitution,  a  govern- 
ment of  laws,  168;  seat  of,  168;  a  govern- 
ment of  limited  powers,  168;  per  interim, 
321  ;  new  government  begun,  322 ;  relation 
of  Court  to,  369. 

Governor,  signature  of,  to  statutes  and  bills 
required  by  State  constitutions,  136;  mem- 
ber of  council  for  revision  of  bdls  to  be 
passed  by  legislature,  136-7 ;  powers  en- 
trusted to  by  States,   197. 

Governor  and  Company  of  the  Massachu- 
setts Bay  in  New  England,  creation  of 
by   charter  of   1628-9,  79,  80. 

Governor  and  Company  of  Merchants  of 
London  Trading  to  the  East  Indies.  See 
East  India  Company. 

Gray,  Mr.  Justice,  decision,  case  involving 
action  of  political  departments  of  the  gov- 
ernment, 379  note ;  on  interpretation  of 
terms  of  Constitution  in  light  of  common 
law,  444;  decision  indicating  gravity  of 
offense  against  law  of  nations,  449 ;  on 
reason  for  exemption  of  State  from  suit, 
454. 

Great  Britain,  conquest  of  Canada  by,  14, 
23;  efforts  of  colonies  at  reconciliation 
with,  16,  18,  23,  27,  28,  29;  regarded  col- 
onies from  imperial  standpoint,  22-3 ;  proc- 
lamation of  rebellion  issued  by,  28;  renun- 
ciation by.  of  right  to  impose  taxes  on  a 
colony,  28;  Treaty  of  Peace  with  United 
States,  49,  60,  276,  277;  Island  of  Granada 
ceded  to,  by  treaty  of  1763  with  France, 
94;  conflict  of  interests  of,  with  those  of 
colonies,  99;  western  territory  ceded  to,  by 
France,  292. 


INDEX 


589 


"  Green  Mountain  Boys,"  defeated  Hessians 
at   battle  of   Bennington,  239. 

Greene,  Nathaniel,  declined  position  as  mem- 
ber of  court,  Pennsylvania  v.  Connecticut, 
232. 

Grenada,  legislative  authority  vested  in  gen- 
eral assembly  of,  94,  96;  ceded  to  Great 
Britain  by  France,  94,  347. 

Grenville's  Act,  1770,  for  trial  of  disputed 
elections,  230. 

Grier,  Mr.  Justice,  on  prize  cases  and  power 
of  president  under  international  law, 
382-3. 

Griffin,  Cyrus,  Judge,  Court  of  Appeals  in 
Cases  of  Capture,  223;  member  of  court, 
Pennsylvania  v.  Connecticut,  232,  233. 

Guizot,    F.,   on   assemblies,  76. 

Habana,  The  Paqucte,  449. 

Hague  Conference,  Pacific  Settlement  Con- 
vention  of,  269,  468. 

Hamilton,  Alexander,  on  coercion  of  States, 
55,  204,  205;  delegate  of  New  York  to 
Annapolis  Convention,  56;  proposed  Major 
Jackson  for  secretary  of  the  Federal  Con- 
vention, 149-50;  suggestion  for  a  constitu- 
tion by,  164,  527-8;  secured  ratification  of 
Constitution  in  New  York,  164,  314-15; 
and  The  Federalist,  164,  204,  205,  314-15, 
362;  on  independence  of  Vermont,  241; 
on  defective  judicial  system  under  Con- 
federation, 247-8  ;  on  immunity  of  sovereign 
from  suit,  248-9;  member,  Committee  on 
Style,  277  note ;  views  of,  respecting  a 
conditional  ratification  of  the  Constitu- 
tion, 309;  views  of,  on  interpretation  of 
Constitution,  332;  on  power  of  judiciary 
to  declare  laws  unconstitutional,  363-4; 
held  judicial  power  to  be  concurrent, 
414-15. 

Hamilton,  John,  member  Massachusetts-New 
Hampshire  boundary  commission,  119  note. 

Hancock,  John,  succeeded  Randolph  as  presi- 
dent of  Second  Continental  Congress,  26, 
216,  310;  signed  Declaration  of  Independ- 
ence as  president  of  Congress,  30,  310; 
views  of,  respecting  amendments  to  Con- 
stitution, 310. 

Hans  v.  Louisiana,  419. 

Hanson,  Alexander  Contee,  member  of  court, 
South   Carolina-Georgia  dispute,  237. 

Hardwicke.  Lord.    See  Yorke,  Sir  Philip. 

Harlan,  Mr.  Justice,  on  right  of  United 
States  to  withhold  moneys  received  by  it 
under   a    treaty,   432-3. 

Harris,  William,  pretensions  of,  subject  of 
Holden    &   Green   petition,   102-9. 

Harrison,  Benjamin,  on  influence  of  New 
Englanders  in  Congress,  41. 


Hayburn's  Case,  352,  353,  365. 

Haymilton,  Otho,  member,  Massachusetts- 
New  Hampshire  boundary,  119  note. 

Heathfield  v.  Chilton,  448. 

Henry,  Patrick,  opposed  to  Constitution,  312; 
declined  appointment  to  Federal  Conven- 
tion, 312. 

Henry  IV,  project  of,  respecting  establish- 
ment  of   European   diet,  9,   333. 

Hessians,  defeated  at  battle  of  Bennington, 
239. 

Hobart,  Sir  Henry,  on  by-laws  of  corpora- 
tions, 67;  drafted  second  Virginia  char- 
ter, 71 ;  drafted  third  Virginia  charter, 
72. 

Holden  and  Green,  petition  of,  101-9. 

Holland,  Treaty  of,  with  United  States,  Oc- 
tober  8,    1782,   49,   60. 

Holland,  Samuel,  member  of  New  York- 
New  Jersey  boundary  commission,  1767, 
116. 

Holmes,  Mr.  Justice,  on  source  of  immunity 
of  sovereign  power  from  suit,  454-5. 

Holmes  v.  Walton,  349,  363. 

Holt,  Chief  Justice,  on  jurisdiction  of  a  cor- 
poration, 68;  on  rights  of  discovery  and 
conquest,  92. 

Holton,  S.,  agent,  Massachusetts-New  York 
boundary  dispute,  235. 

Hooker  (Richard),  influence  of  doctrines 
of,  on  Declaration  of  Independence,  35. 

Hooker,  Thomas,  on  spirit  of  Pilgrims,  3. 

Hosmer,  Titus,  Judge,  Court  of  Appeals  in 
Cases   of   Capture,  223. 

House  of  Burgesses,  Virginia,  23,  83,  84 
note ;  colonial  assemblies  sometimes  called, 
132. 

House  of  Representatives,  represents  people 
of  States  according  to  population,  172; 
great  debate  on,  question  of  representa- 
tion in,  173  el  scq.;  compromise  respect- 
ing proportional  representation  in,  156-7; 
rule  of  suffrage  for,  187;  and  presidential 
election,  196 ;  debate  in,  on  Madison 
amendments,  325.  See  also  Legislative  De- 
partment. 

Houston,  William  Churchill,  member  of 
court,  Pennsylvania  v.  Connecticut,  235, 
236. 

Hudson  Bay  Company,  a  joint-stock  com- 
pany, 68. 

Hunter,  governor  of  New  York,  110;  com- 
missions issued  by,  respecting  New  York- 
New  Jersey  boundary  dispute,  110,  113. 

Hutchinson,  Thomas,  on  Virginia  House  of 
Burgesses,  23;  on  original  charter  of  Mass- 
achusetts, 65 ;  on  representative  institutions 
in  Massachusetts.  82-3 ;  plan  of,  for  treaty- 
making  with   Indians,   198   note. 


590 


INDEX 


Impeachments,  of  national  officers,  Randolph 
plan  respecting,  159;  cases  of,  withdrawn 
from  power  of  president,  197;  trials  of, 
272-3. 

Imposts,  power  of  States  to  lay,  renounced, 
43 ;  power/  of  Congress  to  lay  and  col- 
lect,  166. 

Independence,  a  fundamental  right,  22;  ques- 
tion of,  forced  upon  Second  Continental 
Congress,  29 ;  proclaimed,  30 ;  regulated  by 
Articles  of  Confederation,  40;  of  colonies 
recognized  by  treaties,  60,  148;  colonies  in- 
dependent of  one  another  before  Revolu- 
tion. 125;  of  States,  455.  See  also  Dec- 
laration of  Independence. 

India,  Empire  of,  70. 

Indians,  Six  Nations  of,  Congress  to  treat 
with,  convoked  by  Great  Britain,  11 ;  pur- 
chase from,  of  land  called  Indiana,  242. 

Indians,  not  taxed,  42,  4.77-8 ;  wars  and  treat- 
ies of  Georgia  with,  49;  right  of,  to  pos- 
session, 91;  Jamaica  conquered  from,  92; 
purchase  of  Rhode  Island  from,  102-4,  107; 
voluntary  submission  of  Narragansett  In- 
dians to  British  Government,  101 ;  power 
of  Congress  to  regulate  commerce  with, 
166 ;   territories   reserved   to,  292   note. 

Ingersoll,  Jared,  member,  New  York-New 
Jersey  boundary  commission,   116. 

Instructions  to  delegates,  Federal  Conven- 
tion,  150-3.   173. 

International  Law,  in  Constitution,  167; 
rights  of  presidents  under,  382;  the  com- 
mon  law  of  nations,  439. 

International   "case,"   defined,  431. 

Iredell,  Mr.  Justice,  on  sovereignty  of  the 
States,  333;  judge.  North  Carolina  Circuit 
Court,  351 ;  on  distinction  between  con- 
troversies of  a  civil  and  criminal  nature, 
429,  431,  442. 

Jackson,  Andrew,  refused  third  term  as  pres- 
ident, 195-6. 

Jackson,  Major  James,  secretary  of  Federal 
Convention,  150. 

Jamaica,  part  of  possession  and  revenue  of 
Great  Britain,  92,  93;  conquest  in,  92-3; 
general  assembly  of,  95;  proclamation  of 
Charles  II  inviting  settlers  to,  95. 

James  I,  granted  first  Virginia  charter  to 
London  and  Plymouth  Companies,  70 ; 
charter  of,  less  liberal  than  that  of  Eliza- 
beth, 71 :  question  respecting  power  of,  to 
administer   justice.   345. 

James,  Vice  Chancellor,  decision  of,  suit  of 
United  States  against  Confederate  govern- 
ment, 463. 

Jameson,  Professor,  cited,  respecting  case  of 
The    Active,    222,    223;    on    influence    of 


Court  of  Appeals,  225;  on  Grenville's  Act 
of  1770  and  method  of  Confederation  for 
settling   boundary    disputes,   230-1. 

Jamestown,  first  representative  assembly  in 
America   held   at,   74. 

Jay,  John,  on  Articles  of  Confederation,  46- 
7;  clerk  of  commission  to  adjust  New 
York-New  Jersey  boundary  dispute,  1767, 
116;  and  The  Federalist,  164,  205,  314,  362; 
agent,  Massachusetts-New  York  boundary 
dispute,  235;  advocated  Constitution  in  New 
York  Convention,  315;  Chief  Justice,  Cir- 
cuit Court  for  District  of  New  York.  350; 
commissioner,  cases  of  United  States  v. 
Todd,  353;  opinion  respecting  inclusion  of 
criminal  law  in  common  law,  441. 

Jefferson,  Thomas,  drew  up  report  rejecting 
Lord  North's  conciliatory  resolution,  28; 
chairman  drafting  committee,  Declaration 
of  Independence,  29;  draft  in  writing  of, 
presented  to  Congress,  30,  33,  135  ;  state- 
ment of,  respecting  authorship  of  Declara- 
tion of  Independence,  30  note;  influenced 
by  English  liberal  writers,  36,  36  note; 
and  French  ideas  and  conceptions,  36,  36 
note ;  views  of,  respecting  Articles  of  Con- 
federation, 47;  on  colonial  laws  of  New 
England,  97;  on  colonial  laws,  98;  re- 
fused third  term  as  president,   195. 

Jekyll.  Sir  Joseph,  on  laws  of  conquest  and 
discovery,  93   note. 

Jennings  v.  Carson,  225. 

Johnson,  Andrew,  and  Reconstruction  Acts, 
383-4. 

Johnson,  Thomas,  member  court,  Massachu- 
setts-New York  boundary  dispute,  235. 

Johnson,  William  Samuel,  Connecticut  dele- 
gate to  Federal  Convention,  152:  on  nec- 
essity of  maintaining  State  governments, 
180;  statement  of,  concerning  different  con- 
ceptions of  a  State,  181 ;  agent,  case  of 
Pennsylvania  v.  Connecticut,  232;  member 
court,  Massachusetts-New  York  boundary 
dispute,  235 ;  motion  of,  respecting  exten- 
sion of  jurisdiction  of  Supreme  Court, 
263,  264,  265,  374 ;  considered  special  pro- 
vision for  settling  suits  between  States  un- 
necessary, 269;  member  Committee  on 
Style,  277  note. 

Johnson.  Mr.  Justice,  opinion,  respecting 
Cherokee  Nation  as  a  domestic  State.  388 ; 
on  common-law  jurisdiction  in  criminal 
cases,  441-2:  on  applicability  of  common 
law  in  cases  covered  by  special  legislative 
act,  442. 

Johnson  v.  Mcintosh,  91,  421. 

Joint-stock  Companies,  definition  of,  68;  ad- 
vantages  of, ^69. 

Jones   v.   United   States,   379  note. 


INDEX 


591 


Jones,  Joseph,  member  of  court,  Pennsylva- 
nia-Connecticut boundary  dispute,  232. 

Journals  of  the  Continental  Congress,  17,  231, 
232,  235,  236,  241. 

Journal  of  Federal  Convention,  155,  156,  162, 
250,  251,  252. 

Judicial  commissions,  temporary,  provided 
for,  by  ninth  article  of  Confederation.  229, 
341-2;  nature  of,  229;  influence  of  Privy 
Council  on,  230 ;  cases  settled  by,  231  et 
seq.;  significance  of,  238;  Congress  refused 
to  appoint,  controversy  between  New  Jer- 
sey and   Virginia,  242-4. 

Judicial  power,  under  Confederation,  44,  45, 
109,  119  note,  126,  160,  210  et  seq.,  229  et 
seq.,  247-9,  268-9,  341-2,  455-7;  determina- 
tion of  constitutionality  by,  65,  101,  «121, 
349,  374;  extension  of,  to  territorial  dis- 
putes, 102,  108,  119  note,  125;  in  colonies, 
132-3 ;  under  State  constitutions,  133,  136, 
138-9;  provisions  for,  Randolph  plan,  159, 
250  et  seq.;  provision  for,  Patterson  plan, 
177,  250;  necessity  for  a  common  judiciary, 
247;  vested  in  Supreme  Court,  252  et  seq., 
374  et  seq.;  extended  to  international  ques- 
tions, 268  et  seq.,  378;  of  States,  bound 
by  the  Constitution,  303;  nature  of,  341-70; 
extent  of,  defined  by  Congress,  342 ;  in 
whom  vested,  342,  398;  defined  by  Court 
itself,  343;  influence  of  English  common 
law  on  nature  of,  343 ;  English  cases  on, 
344-9;  an  American  case,  349;  distinction 
between  judicial  and  other  powers,  350  et 
seq.;  finality  of  decision  essential  to,  360, 
400 ;  only  power  possessed  by  court,  374, 
375;  contrasted  with  political  powers,  376 
et  seq.;  extent  and  exercise  of,  398-404; 
of  Federal  and  State  courts  concurrent, 
413-14;  political  power  may  become  ju- 
dicial, 420-4 ;  extends  to  cases  only,  427- 
434;  relation  of,  to  law  and  equity,  ad- 
miralty, martime  and  international  law, 
438  et  seq.;  of  United  States  over  States, 
453. 

Judiciary  Act,  1789,  350,  402-4,  414,  416.  429. 

Jurisdiction,  appellate,  of  Congress  under 
Confederation,  44;  admiralty,  213,  218,  220 
et  seq.;  defined,  400;  determination  of,  401- 
2;  maritime,  447-9.  See  also  Supreme 
Court,  Jurisdiction  of. 

Kendal,  Postmaster-General,  v.  Stockton  and 
Stokes,    384. 

Kennedy,  Archibald,  member  Massachusetts- 
New  Hampshire  boundary  commission,  110 
note. 

Kennet  v.  Chambers,  379  note. 

Kent,  James,  on  dependency  of  territories 
upon    Congress,   295. 


Kentucky,  creation  and  admission  of  State 
of,   290. 

Kepner  v.  United  States,  331,  442-3. 

Kilbourn  v.  Thompson,  342-3. 

King.    See  Crown  of  England. 

King  in  Council,  appeal  to,  100  et  seq.,  213, 
348,  420;  legislative  power  of,  200;  New 
Hampshire   dismembered   by,   238. 

King's  Bench,  decisions  of,  94,  346-7,  347-8. 

King  v.  McLean  Asylum,  431. 

King  of  Spain  v.  Machado,  422. 

King's  Province.    See  Rhode  Island. 

King,  Rufus,  on  procedure  in  Federal  Con- 
vention, 154;  on  representation  of  New 
Hampshire  in  Federal  Convention,  175; 
motion  of,  respecting  Randolph  and  Pat- 
terson plans,  179;  agent,  Massachusetts- 
New  York  boundary  dispute,  235;  opposed 
to  limitation  of  judicial  power  of  United 
States,  252;  member,  Committee  on  Style, 
277  note. 

Koonce  v.  Doolittle.  400. 

Kwananakoa  v.  Polyblank,  454-5. 

Kyd,   Stewart,  on  corporations,  66-8. 

La  Abra  Silver  Mining  Company  v.  United 
States,  431-3. 

Land  and  Trading  Company,  grant  by  Coun- 
cil of  New  England  to,  79. 

Land  tax,  provision  respecting,  in  Articles  of 
Confederation,  42. 

Lane  County  v.  the  State  of  Oregon,  370. 

Langdon,  John,  on  spirit  of  concession  neces- 
sary for  establishment  of  Constitution,  172. 

Law  and  Equity,  definition  of,  438;  how  un- 
derstood by  framers  of  Constitution,  440-1. 

Law  of  Nations,  in  the  Constitution,  167; 
power  of  Congress  to  punish  offences, 
against,  167,  211:  recognized  letters  of 
marque  and  reprisal,  167;  recognizes  cap- 
tures on  land  and  water,  167 ;  rights  of 
presidents  under,  382;  relation  of,  to  com- 
mon law,  439,  448-9. 

Law,  Richard,  commissioner,  case  of  United 
States  v.  Todd,  353. 

Lechmere.    See  Winthrop  v.  Lechmere. 

Lee,  Arthur,  negotiated  treaty  with  France, 
February  26,  1778,  35. 

Lee,  Richard  Henry,  motion  of,  in  Congress 
for  a  declaration  of  independence,  29-30, 
34,  40,  135,  217;  views  of,  respecting  Jef- 
ferson's draft  of  the  Declaration  of  Inde- 
pendence, 30  note. 

Legislative  Department,  two  branches  of,  25, 
76,  158,  172-3;  provisions  for,  Randolph 
plan,  158-9,  161,  172  et  seq.,  190,  250-1; 
provisions  for,  Patterson  plan,  177-8;  com- 
promises respecting,  in  Federal  Conven- 
tion, 172,  187  et  seq.;  questions  of  repre- 


592 


INDEX 


sentation  in,  172,  173  et  seq.;  equality  of 
States  in,  17S-7;  Connecticut  proposal  con- 
cerning, 179;  diversity  of  views  respecting, 
181  et  seq.;  victory  of  the  smaller  States 
in  the  matter  of  the,  185;  southern  States 
and  two-thirds  vote  of,  188;  legislative 
branch  a  check  upon  executive  in  matter 
of  treaties,  198-200;  a  check  upon  the 
legislature,  200  ■et  seq.;  impeachment  of  of- 
ficers of  the  United  States  removed  from 
judicial  to,  272;  vested  with  execise  of 
political  power,  376  et  seq. 
Legislative  Powers,  prescribed  by  May- 
flower compact,  5  ;  of  Confederation,  43  et 
seq.,  137,  160,  173,  181,  341 ;  of  East  India 
Company,  70 ;  not  granted  by  first  Virginia 
charter,  71 :  of  London  Company.  72 :  of 
colonies,  84  note,  85  note,  86  note,  132-3 ; 
of  Privy  Council,  99;  under  State  consti- 
tutions, 136-7:  grant  of,  under  Constitu. 
tion,  137,  190-1,  280,  342,  467. 
Leverett,    Governor    of    Massachusetts,    105, 

106. 
Lexington,  battle  of,  26,  28,  129. 
Lincoln,     Abraham,    blockade    of    southern 

ports  by,  382-3. 
Livingston,    Phillip,  member,   Massachusetts- 
New     Hampshire     boundary     commission, 
119  note. 
Livingston,    Robert    R.,    member,    drafting 
committee,    Declaration    of    Independence, 
30;  remarks,  case  of  Pennsylvania  v.  Con- 
necticut,   234;    agent,    Massachusetts-New 
York    boundary    dispute,    235 ;    advocated 
Constitution  in  New  York  Convention,  315. 
Livingston,     Walter,    agent,     Massachusetts- 
New  York  boundary  dispute,  235. 
Locke,  doctrines  of,  in  Declaration  of  Inde- 
pendence,  30   note,   35,   36   note;   Thomas 
Jefferson  a  student  of,  36  note. 
London  Company,  southern  portion  of  North 
American  coast  assigned  to  in  1606,  71,  77; 
provisions  of  charter  of  1609  to,  71-2,  77; 
summary  of  third  charter  of  1612  to,  72-4; 
commission    of,    convoking    representative 
assembly  at  Jamestown,  64;  powers  of,  re- 
sumed  by    Crown    in    1624,    76;    separated 
from  Plymouth  Company  under  charter  of 
1609,  77. 
London's  Plantation  in  Massachusetts  Bay  in 
New   England,   title   of   local   government 
established     at     Salem    by     Massachusetts 
charter,  1628-9,  81. 
Lords  Commissioners  of  Trade  and  Planta- 
tions, opinion  rendered  to,  respecting  Eng- 
lish  common    law    in   relation   to   colonies, 
96,  97;  foundation  and  purpose  of,  99,  100, 
109;  appeals  from  colonial  courts  to,  100; 


decree  of,  respecting  Atherton  purchase, 
103;  disallowed  New  Jersey  Act  of  1748, 
111,  114-15,  117;  case  of  Penn  v.  Lord 
Baltimore  referred  to,  123. 

Lords  of  Appeal.    See  Appeal,  Lords  of. 

Lottawanna,  The,  477  note. 

Lowell,  John,  agent,  Massachusetts-New 
York  boundary  dispute,  235. 

Luke  v.  Hulbert,  224  note. 

Lurton,  Mr.  Justice,  on  constitutional  equal- 
ity of  States,  294. 

Luther  v.  Borden,  303  note,  379  note,  380-2, 
392. 

Madison,  James,  urged  a  Federal  Constitu- 
tion, 47,  48;  summary  of  weaknesses  of 
Articles  of  Confederation  by,  47-53;  char- 
acter of,  48;  leadership  of,  in  Federal  Con- 
vention, 48 ;  views  of,  respecting  public 
offices,  53;  and  authorship  of  Virginia 
Plan,  53,  195,  200,  203,  250,  279;  on  situa- 
tion of  States  in  matters  of  commerce,  55; 
part  of,  in  convocation  of  Annapolis  Con- 
vention, 56,  145  ;  Virginia  delegate  to  An- 
napolis Convention,  56;  reporter  of  the 
Federal  Convention,  147;  "father  of  the 
Constitution,"  147,  237,  335  ;  on  terms  "  na- 
tional "  and  "  federal."  161-4,  203;  and  The 
Federalist,  164,  205,  314,  362;  on  coercion 
of  States,  165,  203-4,  206-7,  257,  279.  280, 
281 ;  opposed  to  equal  suffrage  of  States 
in  national  legislature,  173-4,  177;  on  sit- 
uation of  larger  States  respecting  Senate 
suffrage  compromise,  186-7 ;  statement  of, 
respecting  president  as  agent  in  treaties, 
198  note ;  in  favor  of  a  check  upon  the 
legislature,  200-1 ;  in  favor  of  granting 
Congress  power  to  negative  State  legis- 
lation, 202 ;  member  of  court,  South  Caro- 
lina-Georgia boundary  dispute,  237;  op- 
posed to  limitation  of  judicial  power  of 
the  United  States,  252-3 ;  favored  estab- 
lishment of  inferior  tribunals  by  national 
legislature,  253;  views  of,  respecting  nomi- 
nation and  appointment  of  Supreme  Court 
judges,  255,  258;  on  jurisdiction  of  national 
judiciary,  259,  264,  265 ;  motion  of,  re- 
specting expression  "judicial  power,"  268; 
in  favor  of  giving  paramount  effect  to 
treaties,  276-7 ;  member,  Committee  on 
Style,  278  note ;  in  favor  of  equality  of 
Western  States,  291,  294;  views  of,  re- 
specting the  system  of  double  Constitu- 
tions, 302;  in  favor  of  popular  ratification 
of  Constitution,  305-6,  307;  opposed  to 
conditional  ratification  of  the  Constitution, 
309;  proposed  amendments  to  Constitution, 
310,  323  et  seq.;  advocate  of  Constitution 


INDEX 


593 


in  Virginia  Convention,  313 ;  in  favor  of 
incorporating  amendments  into  text  of 
Constitution,  327;  on  method  of  electing 
president,  329;  on  amendments  to  Consti- 
tution, 329-30;  on  interpretation  of  Con- 
stitution by  State  Conventions,  331  2 ;  let- 
ter to  Hayne,  on  Constitution,  335-7 ;  on 
necessity  for  a  Supreme  Court,  358;  views 
of,  respecting  exercise  of  power  by  courts, 
374;  proposed  investing  national  judiciary 
with  political   functions,  418. 

Maine,  Sir  Henry  Sumner,  on  French  in- 
fluence on  American  political  philosophy, 
35-6 ;  on  the  Supreme  Court,  280 

Mansfield,  Lord,  on  legislative  power  of 
King,  94,  95,  96,  99,  347;  on  by-laws,  347; 
on  international  and  common  law,  448. 

Marbury  v.  Madison,  361,  366-8,  384,  427. 

Maritime  Jurisdiction,  judicial  power  of  the 
United  States  extended  to  cases  of,  212, 
447,  449. 

Marshall,  Chief  Justice,  on  Articles  of  Con- 
federation, 47;  on  sovereignty  of  States, 
59-60 ;  on  rights  of  discovery,  91  ;  case  of 
The  Active  tried  before,  222;  on  division 
of  sovereign  powers,  334,  369;  on  duties 
of  judicial  department,  361,  370;  on  de- 
termination of  constitutionality  by  judic- 
iary, 364 ;  on  act  of  Congress  enlarging 
original  jurisdiction  of  Supreme  Court, 
366-8;  on  the  judiciary  and  international 
relations,  377-8;  on  the  judicial  nature  of 
a  treaty  as  a  contract,  378;  opinion  of, 
respecting  the  appellate  jurisdiction  of  the 
United  States  and  the  liability  of  States, 
409-12;  on  cases  arising  in  law  and  equity, 
412,  438;  on  concurrent  powers  of  Fed- 
eral and  State  Courts,  416;  "case"  de- 
fined by,  427-8 ;  on  state  as  a  corporator 
not  exempt  from  suit,  464-5. 

Martin,  Luther,  in  favor  of  equal  suffrage 
of  States,  176;  member  compromise  com- 
mittee, Senate  suffrage  controversy,  185 ; 
motion  of,  respecting  supremacy  of  laws 
of  union,  275-6;  opinion  of,  respecting 
amendments  to  Constitution,  300,  301  ;  in 
favor  of  separation  of  judicial  and  politi- 
cal powers,  418. 

Martin  v.  Hunter,  405-9,  410.  453. 

Maryland,  represented  at  Albany  Congress, 
11;  governed  under  a  charter  to  a  pro- 
prietor, 22;  last  state  to  ratify  Articles 
of  Confederation,  40,  231,  293:  compact 
of,  with  Virginia  an  encroachment  on 
Federal  authority,  49;  laws  of,  favoring 
own  citizens,  49;  part  of,  in  Annapolis 
Convention,  55,  56,  145;  representative  as- 
semblies in,  84  note ;  grant  of,  to  second 


Lord  Baltimore,  121;  charter  of,  121,  121 
note,  122-3;  boundary  dispute,  121-5;  col- 
onial governor  and  courts  of,  appointed  by 
proprietor,  138;  appointed  delegates  to 
Federal  Convention,  147;  instructions  to 
delegates,  153;  in  favor  of  equal  repre- 
sentation of  States  in  Senate,  184,  185; 
constitution  of,  196,  307;  views  of,  re- 
specting independence  of  Rhode  Island, 
241 ;  contention  of,  respecting  northwest- 
ern territory,  291-2,  292  note;  vote  of,  on 
question  of  popular  ratification  of  Con- 
stitution. 305,  308;  ratification  of  Consti- 
tution by,  311,  571  note;  unconstitutional 
law  of,  taxing  agent  of  government,  368- 
9;  ratification  of  first  ten  amendments  by, 
572  note. 

Mason,  George,  Virginia  delegate  to  An- 
napolis Convention,  56;  drafted  Virginia 
Bill  of  Rights,  135;  on  procedure  in  Fed- 
eral Convention,  154;  views  of,  respecting 
coercion  of  States,  164-5,  203,  205-6 ;  mem- 
ber compromise  committee,  Senate  suffrage 
dispute,  185 ;  opposed  to  recognition  of 
slavery  in  Constitution,  189 ;  favored  crea- 
tion of  inferior  tribunals,  259;  in  favor 
of  equality  of  Western  States,  291,  294; 
in  favor  of  popular  ratification  of  Con- 
stitution, 305-6,  307;  opposed  Constitution 
in  Virginia  Convention,  313 ;  proposed  bill 
of   rights   to   Constitution,   328. 

Massachusetts,  separatists  from,  founded 
Connecticut,  4  ;  General  Court  and  Assembly 
of,  4,  78,  82-3,  132;  member  of  New  Eng- 
land Confederation,  6;  jurisdiction  of,  not 
recognized  by  Rhode  Island,  7;  delegates 
from,  to  Albany  Congress,  11  ;  delegates 
from,  to  First  Continental  Congress,  23 ; 
resolution  of  House  of  Representative  of, 
respecting  a  Continental  Congress,  23 ; 
troops  raised  by,  without  consent  of  Con- 
federation, 49;  government  developed  by, 
model  for  northern  colonies,  64;  charters 
of,  65,  79-82,  83-4,  84  note,  131,  132;  com- 
pared with  Virginia,  78,  83;  Governor  and 
Company  of  the  -Mattachusetts  Bay  in 
Newe  England,  79,  80,  81 ;  representative 
assemblies  in,  82-3,  84  note;  judiciary 
under  constitution  of,  138-9;  Bill  of  Rights 
of,  140;  appointed  delegates  to  Federal 
Convention,  147;  instructions  to  delegates, 
152;  vote  of,  on  question  of  equal  suf- 
frage of  States  in  Senate,  184 ;  opposed 
to  taxing  exports,  188;  practice  of.  re- 
specting appointment  of  public  officials, 
199;  first  prize  court  established  in,  216; 
Provincial  Congress  of,  216;  selection  of 
judges  by  executive  with   consent  of  leg- 


594 


INDEX 


islative  in,  258;  recognized  independent 
statehood  of  Vermont,  241 ;  claim  of,  to 
western  New  York,  292  note ;  claim  of, 
to  northwest  territory,  292;  in  favor  of 
popular  ratification  of  Constitution,  305, 
308;  ratification  of  Constitution  by,  310, 
571  note ;  amendments  to  Constitution  pro- 
posed by,  330;  unconstitutional  act  of  Con- 
gress taxing  an  agent  of,  369. 

Massachusetts  v.  New  York,  118  note,  234- 
6,  237. 

Matthews,  Mr.  Justice,  on  a  government  of 
laws,  140;  on  interpretation  of  terms  of 
common  law,  443-4;  on  immunity  of  States 
from  suit,  459. 

Mayflower,  The,  3. 

Mayflower  Compact,  entered  into  by  Pil- 
grims, 3 ;  legislative  power  prescribed  by, 
5 ;  set  forth  American  conception  of  State 
as   agent  of  the   people,  9. 

Melville,  General,  governor  of  Grenada,  94, 
96. 

Mexico,  Treaty  of  February  22,  1819,  with 
United  States,  430. 

Militia,  State,  power  of  Congress  over, 
167-8. 

Miller,  Mr.  Justice,  on  three-fold  division 
of  government,  342-3;  judicial  power  de- 
fined by,  343;  on  United  States  as  claim- 
ant and  actor  in  court,  461. 

Minor  v.  Happersett,  303  note,  444. 

Mississippi  v.  Johnson,  383-4,  386. 

Money,  power  to  borrow,  and  emit  bills 
given  to  Congress,  43,  166 ;  power  to  coin 
and    regulate    value   of,    166. 

Monroe,  James,  on  results  of  the  Declaration 
of  Independence,  33 ;  member  court,  Mass- 
achusetts-New York  boundary  dispute, 
235. 

Montesquieu,  three-fold  division  of  govern- 
ment, a  principle  borrowed  from,  250,  341, 
342. 

Moore  v.  United  States,  444. 

Moot  Cases,  judicial  power  of  Constitution 
does  not  extend  to,  434. 

Morey,  on  Virginia  charter  of  1606,  70 ; 
on  colonial  constitution  of  Virginia,  76. 

Morgan,  George,  agent,  New  Jersey- Virginia 
dispute,  242,  243,  244;  petition  of,  to  Con- 
gress, 243-4. 

Morley,  Lord,  on  influence  of  French  politi- 
cal philosophy,  36. 

Morris,  Charles,  member,  New  York-New 
Jersey  boundary  commission,   116. 

Morris,  Gouverneur,  opposed  to  equal  suf- 
frage of  States,  148,  173;  views  of,  re- 
specting tenure  of  judges,  263;  motion  of, 
respecting  extension  of  jurisdiction  of  Su- 


preme Court,  264 ;  doubts  of,  respecting 
appellate  jurisdiction  of  Supreme  Court, 
273;  in  favor  of  giving  paramount  effect 
to  treaties,  277;  member,  Committee  on 
Style,  277  note;  opposed  to  equality  of 
Western  States,  291,  293,  294;  in  favor 
of  equal  suffrage  of  States  in  Senate,  300; 
question  of,  respecting  extent  of  judicial 
power  to  matters  of  fact  as  well  as  civil 
law,  447. 

Morris,  Robert,  opposed  to  equal  vote  of 
small  States,  148 ;  proposed  George  Wash- 
ington as  President  of  Federal  Conven- 
tion,   148-9. 

Morse,  Mr.  Justice,  on  judicial  power  and 
moot  cases,  434. 

Munday  v.  Vail,  400. 

Murray  v.  Hoboken,  432. 

Muskrat  v.  United  States,  433. 

Nabob  of  the  Carnatic  v.  The  East  India 
Company,  379  note,  386. 

Nathan  v.  Commonwealth  of  Virginia,  58-9, 
455. 

Nations,  and  the  question  of  coercion,  282; 
immunity  of,  from  suits,  452,  454 ;  a  court 
of  the,  468.  See  also  Law  of  Nations, 
Society  of  Nations. 

Naturalization,  Rule  of,  power  vested  by 
Constitution  in  Congress  to  establish,  166; 
provisions    for,    Patterson   plan,    178. 

Navigation  Acts,  26. 

Navigation,  laws  of,  repealed  by  Parliament 
in  1849,  28;  state  of,  under  Confederation, 
145;  demands  of,  considered  by  Annapolis 
Convention,  145-6;  position  of  certain 
States  in  respect  to,  188-9;  recommenda- 
tions of  committee  concerning  acts  of, 
Federal  Convention,  188;  two-thirds  re- 
quirement inserted  in  report,  188;  com- 
promise respecting,  in  Federal  Convention, 
189-90. 

Navy,  power  of  Congress  to  build  and  equip, 
43,  167;  president  commander-in-chief  of, 
167,  197;  not  to  be  kept  by  States  in  time 
of  peace,  210,  212. 

Nelson,  Mr.  Justice,  on  division  of  sov- 
ereign powers,  335 ;  held  that  States  can- 
not tax  agency  of  the  government,  369; 
on  court's  relation  to  the  government  and 
to  the  States,  369-70 ;  opinion  of,  invol- 
ving distinction  between  political  and  ju- 
dicial   powers,   386-9. 

Neilson,  Thomas,  member  of  court,  Pennsyl- 
vania v.  Connecticut,  232. 

New  England,  unpopularity  of,  41 ;  first 
charter,  1606,  70-1,  77;  second  charter, 
1620,   77-9;    third   charter,    1628-9,    79-82; 


INDEX 


595 


northern  colonies  modeled  upon  charter 
and  institutions  of,  71 ;  the  Plymouth  Com- 
pany, 78-9 ;  Council  of,  79 ;  charter  an- 
nulled in  1684,  82;  royal  charter  of  1691, 
82;  Jefferson  on  colonial  laws  of,  97; 
grant  of,  by  Charles  II  to  Duke  of  York, 
122. 

New  England  Company.  See  Plymouth 
Company. 

New  England  Confederation,  1643,  indicates 
existence  of  idea  of  colonial  union,  6; 
aims  of,  6,  7;  summary  of  articles  of,  6-9; 
subscribed  to  by  commissioners  of  colon- 
ies, 9 ;  prescribes  equal  representation  of 
colonies,  11  ;  advantages  of  union  shown 
by,  11  ;  complaint  of  Rhode  Island  against, 
101-9;  text  of,  471-6  See  also  Commis- 
sioners of  New  England  Confederation, 
and  Confederates,  New  England. 

New  England  Restraining  Act,  1775,  27. 

New  Hampshire,  represented  at  Albany  Con- 
gress, 11;  establishment  by,  of  revolution- 
ary government  recommended,  29,  129; 
late  attendance  of,  at  Federal  Convention, 
58,  175,  176,  185 ;  representative  govern- 
ment set  up  in,  85  note;  boundary  disputes, 
115,  118  note,  238-41,  421;  instructions  to 
delegates  to  Federal  Convention,  150;  in 
favor  of  equal  suffrage  of  States,  175, 
185  ;  New  Hampshire  grants,  238  et  seq.; 
recognized  independent  statehood  of  Ver- 
mont, 241 ;  in  favor  of  popular  ratification 
of  Constitution,  308;  ratification  of  Con- 
stitution by,  312,  315,  571  note;  amend- 
ments to  Constitution  proposed  by,  330; 
ratification  by,  of  first  ten  amendments, 
572  note. 

New  Haven,  member  of  New  England  Con- 
federation, 7. 

New  Jersey,  compact  of,  with  Pennsylvania, 
an  encroachment  on  Federal  authority,  49; 
commercial  situation  of,  55 ;  represented 
at  Annapolis  Convention,  56,  146;  dele- 
gates of,  to  Federal  Convention,  57,  146; 
representative  assemblies  in,  85  note; 
boundary  disputes,  109-18,  238  et  seq.; 
grant  of,  to  Lord  Berkley  and  Sir  George 
Carteret,  116;  in  favor  of  equal  represen- 
tation of  States  in  Congress,  174 ;  in  favor 
of  equal  suffrage  of  States  in  Senate,  184; 
in  favor  of  independence  of  Rhode  Is- 
land, 241  ;  vote  of,  on  popular  ratification 
of  Constitution,  305,  308;  ratification  of 
Constitution  by,  309,  310,  571  note;  con- 
stitution of,  349;  statute  of  New  Jersey 
of  1778  declared  unconstitutional,  349;  rat- 
ification by,  of  first  ten  amendments,  572 
note. 


New  Jersey  v.  Virginia,  238,  239,  242-4. 

New  Jersey  Assembly  Acts  relative  to  boun- 
daries, Act  of  1719,  110,  111;  Act  of  1748, 
111,  114;  Act  of  1764,  101;  Act  of  1772, 
117. 

New  Jersey  Plan.    See  Patterson  Plan. 

New  York,  represented  at  Albany  Congress, 
11  ;  address  of  Provincial  Congress  of,  to 
Washington,  27  note;  laws  of,  favoring 
own  citizens,  49;  represented  at  Annapo- 
lis Convention,  56,  146;  charter  of,  86 
note ;  representative  assemblies  in,  86  note ; 
conquered  from  Dutch  and  ceded  to  Great 
Britain  by  teaty,  91 ;  boundary  disputes, 
109-18,  118  note,  234-6,  237,  238-41,  292 
note,  387 ;  constitution  of,  136-7,  201 ;  sen- 
ate, court  of  appeals  in,  139;  appointed 
delegates  to  Federal  Convention,  147;  in- 
structions to  delegates,  Federal  Conven- 
tion, 152;  ratification  of  Constitution  by, 
secured  by  Hamilton,  164,  164  note ;  vote 
«f,  respecting  equal  suffrage  of  States  in 
Senate,  184,  185;  and  independent  state- 
hood of  Vermont,  241,  290;  claim  of,»  to 
Northwest  Territory,  244,  292,  292  note; 
opposed  to  popular  ratification  of  Consti- 
tution, 305 ;  ratification  of  Constitution  by, 
312,  314-15,  571  note;  amendments  to  Con- 
stitution proposed  by,  330 ;  ratification  by, 
of  first  ten  'amendments,  572  note. 

New  York  Assembly  Acts  relative  to  boun- 
daries, Act  of  1717,  109,  110,  111,  113, 
114;  Act  of  1719,  114;  Act  of  1754,  114, 
115;  Act  of  1771,  117. 

New  York  v.  Connecticut,  386. 

New  York  City,  first  seat  of  government 
under   Constitution,  322 

Non-Importation,  Non-Consumption  and 
Non-Exportation  Agreement,  considered 
by  Congress,  26. 

Norris  v.  Staps,  67. 

North,  Lord,  Conciliatory  Resolution  of 
February  27,   1775,   27;    rejected,   28. 

North  and  South,  distrust  between,  41 ;  dis- 
tinction between,  77 ;  colonial  development 
contrasted,   83. 

North  Carolina,  delegates  of,  to  First  Con- 
tinental Congress,  24;  commercial  situa- 
tion of,  under  Confederation,  55;  ratifica- 
tion of  Constitution  by,  46,  309,  571  note; 
appointed  delegates  to  Federal  Convention, 
49,  146;  instructions  to  delegates  Federal 
Convention,  150;  charter  of,  85  note;  rep- 
resentative assemblies  in,  85  note ;  bound- 
ary disputes,  118  note,  119  note;  vote  of, 
respecting  equal  suffrage  of  States  in  Sen- 
ate, 184,  185 ;  in  favor  of  popular  ratifi- 
cation of   Constitution,   305,   308 ;   ratifica- 


596 


INDEX 


tion  of  constitution  by,  316,  571  note ; 
amendments  to  Constitution  proposed  by, 
330;  ratification  by,  of  first  ten  amend- 
ments,  572   note. 

Northwest  Ordinance,  approved  by  first  Con- 
gress under  Constitution,  286 ;  summary 
of,  286-90;  interpretation  of  terms  of,  444- 
5;   text   of,   514-19. 

Northwest  Territory,  cession  of  Virginia's 
claims  to,  242,  243,  244,  286,  290,  293;  or- 
dinance for  government  of,  286  et  seq., 
444;  Congress  pledged  to  create  States 
within,  290,  292  note,  292-3;  originally  part 
of  English  Province  of  Quebec,  292  note. 

Officers  of  the  army  and  navy,  to  be  ap- 
pointed by  Congress,  43 ;  Madison's  view 
of  public  officers,  53;  impeachment  of  na- 
tional officers,  Randolph  plan  respecting, 
159. 

Ohio  v.  Lafferty,  444-5. 

Oliver,  Andrew,  member  New  York-N£w 
Jersey  boundary  commission,   1767,   116. 

Olmstead's  case,  220,  222,  222  note.* 

Osborn  v.  Bank  of  the  United  States,  412- 
13,  428-9,  430. 

Otis,  pamphlet  of,  2,  not  used  in  compilation 
of  Declaration  of  Independence,  25  note. 

Paca,  William,  judge,  Court  of  Appeals  in 
Cases  of   Capture,  223. 

Pacific  Railway  Commission,  In  re,  429-30. 

Pacific  Telephone  Company  v.  Oregon,  389- 
93. 

Paine,  Mr.  Justice,  interpretation  of  terms 
"  law  and  equity,"  446-7. 

Paine,  Robert  Treat,  Massachusetts  delegate, 
first    Continental    Congress,   23. 

Pardons,   President's  power  to  grant,   197. 

Paris,  Treaty  of,  France  and  England,  Feb- 
ruary 10,  1763,  14,  23,  94,  292,  347;  France 
and  United  States,  April  30.   1803,  377. 

Parliament,  acts  of,  infringing  upon  col- 
onial rights,  14,  23,  24,  46;  colonists  held 
by  Great  Britain  to  be  subject  to,  22;  peti- 
tioned by  colonies  for  redress  of  griev- 
ances, 23 ;  colonists  could  not  be  properly 
represented  in,  25 ;  right  of,  to  regulate 
external  commerce  of  colonies,  25 ;  Ja- 
maica not  represented  in,  92 ;  power  of,  to 
legislate  for  territories  subject  to  Crown, 
93,  94,  95,  96 ;  conclusions  of  Privy  Coun- 
cil  sanctioned  by,   125. 

Parliamentary  Commission,  Rhode  Island 
charter  of   1644  granted  by,  85  note. 

Parsons,  Theophilus,  agent,  Massachusetts- 
New  York  boundary  dispute,  235. 

Patents,  power  over,  given  to  Congress,  166. 


Patent,  Letters  of.    See  Letters  of  Patent. 

Patterson,  William,  delegate  of  New  Jersey  to 
Annapolis  Convention,  56;  member,  com- 
promise committee,  Senate  suffrage  contro- 
versy, 185;  views  of,  respecting  equal  suf- 
frage of  States,  174;  member  of  court, 
Massachusetts-New  York  boundary  dis- 
pute, 235  ;  summary  of  Randolph  proposals 
by,  251 ;  in  favor  of  ratification  of  Consti- 
tution by  State  legislatures,  305;  on  rela- 
tion of  a  constitution  to  laws  passed  by 
a  legislature,  366.  See  also  Patterson 
Plan. 

Patterson  Plan,  submitted  to  Federal  Con- 
vention, 164,  177,  256;  rejected  in  favor 
of  Randolph  resolutions,  164,  179;  referred 
to  Committee  of  Detail,  164,  260;  referred 
to  Committee  of  the  Whole,  177,  257; 
nine  resolutions  of  177-8;  a  revision  of 
the  Articles  of  Confederation,  178,  256; 
result  of,  179;  specified  a  plural  executive, 
195 ;  provided  for  a  check  upon  the  legisla- 
ture, 200 ;  provision  of,  respecting  coercion 
of  States,  203,  205;  provision  of,  for  ju- 
diciary. 250,  251 ;  government  to  avail  it- 
self of  State  courts  according  to,  256-7; 
made  laws  of  union  within  grant  of  power 
superior  to  laws  of  States,  275 ;  pro- 
vision of,  for  admission  of  new  states, 
291 ;  text  of,  525-7. 

Peace,  to  be  declared  by  Congress,  43 ;  Ran- 
dolph resolution  respecting  questions  in- 
volving, 159. 

Penn  v.  Lord  Baltimore,  101,  121-5,  386, 
387,   420-1. 

Penn,  William,  "  scheam "  of,  for  union  of 
colonies,  6,  9,  10,  11,  476-7;  idea  of  union, 
9,  10 ;  essay  of,  Toward  the  Present  and 
Future  Peace  of  Europe,  9;  plan  of,  for 
colonial  union  shows  method  of  making 
colonies  self-governing  dominions,  11  ; 
agreement  of  sons  of,  with  Lord  Balti- 
more, 1732,  101,  104,  420-1 ;  charter  of 
Pennsylvania  granted  to,  122. 

Penhallow  v.  Doane,  447. 

Pennsylvania,  delegates  from,  to  Albany 
Congress,  11 ;  compact  of,  with  New  Jer- 
sey, an  encroachment  on  Federal  author- 
ity, 49;  interest  of,  in  navigation  of  Chesa- 
peake Bay,  55-6 ;  represented  at  Annapo- 
lis Convention,  56;  appointed  delegates  to 
Federal  Convention,  57,  146;  instructions 
to  delegates.  Federal  Convention,  150; 
charter  of,  85  note,  122,  123;  representa- 
tive assemblies  in,  85  note;  boundary  dis- 
putes, 121-5,  231-4,  237,  238,  241-2,  243, 
292 ;  but  one  branch  of  legislative  power 
in,  136;  constitution  of,  136,  365;  colonial 


INDEX 


597 


governor  and  courts  of,  appointed  by  pro- 
prietor, 138;  proposal  of,  for  bicameral 
system  in  national  legislature,  172 ;  op- 
posed to  equal  suffrage  of  States,  173; 
opposed  to  election  of  senators  by  State 
legislatures,  180;  opposed  to  equal  suf- 
frage of  States  in  Senate,  174,  185;  re- 
pealed statute,  authorising  juries  to  decide 
admiralty  causes,  222;  in  favor  of  popular 
ratification  of  Constitution,  305,  308 ;  rat- 
ification of  Constitution  by,  310,  571  note; 
ratification  of  first  ten  amendments,  310, 
572  note. 

Pennsylvania  v.   Connecticut,   231-4,   237. 

Pennsylvania  v.  Virginia,  237,  238,  241-2, 
243. 

Pensions,  acts  of  Congress  respecting,  350, 
365. 

Percy  v.  Stranahan,  379  note. 

Peters,  Judge,  decision,  case  of  The  Active, 
222;  District  Judge,  Circuit  Court  for  Dis- 
trict of   Pennsylvania,  350. 

Phelps,  Edward  John,  on  duty  of  Supreme 
Court    respecting   Constitution,    333.  . 

Philadelphia,  meeting  place  of  First  Conti- 
nental Congress,  23;  meeting  place  of  Fed- 
eral Convention,  57,  146;  Penn  anxious  to 
secure  land  for,  103 ;  petition  of  citizens 
and  merchants  of,  respecting  Court  of  Ap- 
peals in  Prize  Cases,  219,  239. 

Phillips  v.  Payne,   379  note. 

Phillips,  Erasmus  James,  member,  Massa- 
chusetts-New Hampshire  boundary  com- 
mission,   119  note. 

Pickering,  observations  of,  respecting  Dec- 
laration of  Independence,  30  note. 

Pilgrims,  enters  into  Mayflower  Compact,  3; 
Connecticut  founded  by  separatists  from, 
4 ;   views  of,  in  matter  of  compact,  5. 

Pinckney,  Charles,  on  attitude  of  smaller 
States,  respecting  creation  of  legislature, 
179;  motion  of,  on  question  of  power  to 
negative  State  legislation,  178  note;  on 
distinct  commercial  interest  of  States,  188- 
9;  in  favor  of  appointment  of  supreme 
court  judges  by  legislature,  255  ;  proposal 
of,  respecting  extension  of  jurisdiction  of 
Supreme  Court,  264. 

Pinckney  Plan,  submitted  to  Federal  Con- 
vention, 163,  251  ;  referred  to  Committee 
of  Detail,  164,  251,  260;  treaty-making  pro- 
vision  in,    198  note;   text   of,   522. 

Pinckney,  Charles  Cotesworth,  motion  for 
compromise,  Senate  suffrage  controversy, 
184;  on  inclusion  of  slaves  in  rule  of 
representation,  187;  on  distinct  commer- 
cial interests  of  States,  189. 

Pines,  Isle  of,  379  note. 


Piracies  and  felonies  committed  on  the  high 
seas.  Randolph  plan  respecting,  159;  ninth 
article  of  Confederation  deals  with,  210; 
courts  of  the  Confederated  States  for  trial 
of,  211  ;  power  of  Congress  to  define  and 
punish,  211,  215;  necessity  of  rules  for 
capture  and  disposition  of,  213;  trial  of, 
under   Confederation,  214 

Plantations.  See  Council  for  the  Govern- 
ment of  Foreign  Plantations. 

Piatt    Amendment,   379  note. 

Pleas.    See  Courts  of  Common  Pleas. 

Plymouth,  member  of  New  England  Con- 
federation, 7;  jurisdiction  of,  not  recog- 
nized by  Rhode  Island,  7;  signs  Arti- 
cles of  New  England  Confederation,  9; 
general  Court  of,  9;  Council  of  Plym- 
outh for  New  England,  77-8;  representa- 
tive assembly  in,  84  note ;  Rhode  Island 
complains  against  commissioners  of,  102. 

Plymouth  Company,  northern  portion  of 
North  American  coast  assigned  to,  by- 
charter  of  1606,  70,  71  ;  separated  from 
London  Company  by  charter  of  1609,  77; 
second  charter  of,  1620,  77-9;  becomes 
Council  of  Plymouth  for  New  England, 
77-8. 

Political  power.    See  Judicial  power. 

Poll  tax,  distinguished   from  land  tax,  42 

Pollock,  Sir  Frederick,  on  Rousseau's  in- 
fluence on  American  political  philosophy, 
36  note. 

Popham,  Sir  John,  drafted  first  Virginia 
charter,  70. 

Post  offices,  to  be  established  and  regu- 
lated by  Congress,  43,  166 

Post  roads,  power  of  Congress  to  estab- 
lish,   166 

Potomac  River,  freedom  of  navigation  of, 
145. 

President,  power  of  Congress  under  Con- 
federation to  appoint,  43 ;  commander-in- 
chief  of  army  and  navy,  167,  197;  method 
of  election  of,  196-7;  oath  of  office  of, 
197;  may  be  removed  from  office,  197; 
powers  of,  197  et  seq.:  and  treaties,  197 
9;  public  ministers  appointed  and  received 
by,  199 ;  veto  of,  on  proposed  legislation 
of  Congress,  200-2;  conduct  of  interna- 
tional relations  confided  by  Congress  to, 
376;  rights  of,  under  international  law, 
382 ;  duty  of.  respecting  acts  of  Congress, 
383-6.    See  also  Executive. 

Prioleau  v.  United  States  and  Andrew  John- 
son, 461-2. 

Privy  Council,  appeal  to,  from  colonial 
courts,  96,  101  et  seq.,  348;  prerogatives 
of  King  exercised  in,  99;  legislative,  execu- 


598 


INDEX 


tive  and  judicial  powers  of,  99;  influence 
of,  on  settlement  of  boundary  disputes, 
230-1  ;  influence  of,  on  judicial  commis- 
sions, 230;  nature  and  jurisdiction  of,  109; 
decision  in  New  York-New  Jersey  boun- 
dary   controversy,    117. 

Prize,  ninth  article  of  Confederation  deals 
with,  210;  courts  of  the  Confederated 
States  for  trial  of  cases  of,  211;  power 
of  Congress  to  define  and  punish,  211  ; 
necessity  of  prize  procedure,  215;  appeal 
to  Congress  from  colonial  courts  in  mat- 
ters of,  217. 

Prize   Cases,    382-3. 

Prize  Courts,  first,  established  in  Massa- 
chusetts, 216;  resolution  of  Congress  under 
Confederation  respecting,  216  et  seq.;  an 
international  court  of  prize,  447.  See  also 
Court  of  Appeals  in  Cases  of  Capture. 

Proclamation    of    Rebellion,    1775,   28. 

Proclamations,   345-6. 

Prohibitions  Del  Roy,  345. 

Providence  Plantation.    See  Rhode  Island. 

Provost,  William,  member,  Massachusetts- 
New  Hampshire  boundary  commission, 
119   note. 

Putnam,  Circuit  Judge,  on  distinction  be- 
tween   "cases"   and    "controversies,"   431. 

Pynchon,  William,  member  of  court,  South 
Carolina-Georgia  boundary  dispute,  237. 

Randolph,  Edmund,  Virginia  delegate  to  An- 
napolis Convention,  56;  opening  address 
of,  Federal  Convention,  156-7;  advocate 
of  limited  and  specified  powers,  162;  on 
victory  of  small  States  in  question  of 
equal  suffrage  in  Senate,  185-6;  in  favor 
of  a  plural  executive,  195  ;  member,  Com- 
mittee of  Detail,  260. 

Randolph  Plan,  authorship  of,  53,  158,  195, 
200,  203,  250,  261,  279;  fifteen  resolutions 
of,  158-9;  provisions  of,  for  national  leg- 
islature, 158-9,  161,  172  et  seq.,  190, 
250-1  ;  provision  of,  for  national  execu- 
tive, 158-9,  161,  194-5,  199,  200,  250;  pro- 
vision of,  for  national  judiciary,  159, 
161,  250;  division  of,  into  four  groups, 
159;  not  based  on  Articles  of  Confedera- 
tion, 160;  terms  "  national  "  and  "  federal  " 
in,  161,  164,  202 ;  prescribes  a  union 
of  free  states,  161  ;  referred  to  Commit- 
tee of  Detail,  164;  reported  from  Com- 
mittee of  the  Whole,  176,  177;  recom- 
mitted to  Committee  of  the  Whole  with 
Patterson  Plan,  177;  Patterson  plan  re- 
jected in  favor  of,  164,  179;  basis  of  dis- 
cussion in  Federal  Convention,  179;  ob- 
stacles in  way  of  a  Constitution  according 


to,  overcome,  190;  provision  of,  respect- 
ing coercion  of  States,  203;  in  original 
form,  not  pleasing  to  small  States,  256; 
favored  by  majority  of  Convention,  257; 
made  laws  of  Union  within  grant  of  power 
superior  to  laws  of  the  States,  275 ;  pro- 
vision of,  for  admission  of  new  States, 
290-1 ;  provision  of,  for  amendment  to 
Constitution,  299,  300,  301 ;  provision  of, 
for  ratification  of  Constitution,  305;  pro- 
vision of,  for  a  government  per  interim, 
321;  text  of  520-2;  text  of  report  of  Com- 
mittee of  Whole  on,  524-5 ;  text  of,  as 
revised  by  Convention  and  referred  to 
Committee  of   Detail,  529-32. 

Randolph,  Peyton,  president,  First  Conti- 
nental Congress,  23 ;  president,  Second 
Continental  Congress,  26. 

Ratification,  of  Articles  of  Confederation, 
40,  50,  53,  58,  59,  210,  292,  305 ;  of  colonial 
laws,  75. 

Ratification  of  Constitution,  certain  amend- 
ments insisted  on  by  States  before,  46 ; 
in  New  York,  secured  by  Hamilton,  164, 
314 ;  provision  for,  301 ;  by  special  State 
conventions,  301  et  seq.;  not  dependent 
upon  approval  of  three-fourths  of  States, 
265;  discussion  of  mode  of,  305-8;  spirit 
of  the,  309;  by  various  States,  309  et  seq.; 
difficulties  of,  312-14;  action  of  Congress 
upon,  322. 

Read,  George,  on  equal  suffrage  of  States, 
151-2,  173-4;  Hamilton  project  respecting 
a  consolidated  form  of  government  ap- 
proved  by,    164. 

Reading,  John,  member,  Massachusetts-New 
Hampshire  boundary  commission,  119 
note. 

Rebellion,    Proclamation    of,    1775,    28. 

Reconstruction  Acts,  1867,  384,  386. 

Reed,  George,  member  of  court,  Massachu- 
setts-New York  boundary  dispute,  235. 

Reed,  Joseph,  agent,  case  of  Pennsylvania 
v.  Connecticut,  232. 

Regulated  Companies,  defined,  68 ;  personal 
independence  of  members  of,  69.  See  The 
Russia,  The  Eastland,  and  The  Turkey 
Companies. 

Reprieves,  president's  power  to  grant,  197. 

Representation,  system  of,  prescribed  by 
Constitution,  172;  under  Randolph  plan, 
173 ;  different  views  respecting,  173  et 
seq.;  proportional,  in  House  of  Represen- 
tatives, 179-80;  equal  in  Senate,  180  et 
seq.;  Franklin's  conciliatory  proposal  re- 
specting, 182,  185 ;  by  numbers,  as  affected 
by  slaves,  187. 

Representative    assemblies,    house    of    bur- 


INDEX 


599 


gesses  in  Virginia,  23,  74,  83,  83  note ; 
growth  of,  82  et  s-eq.;  bicameral  system, 
83,  84  note,  85  note,  86  note. 
Requisitions,  power  of  Congress  to  make, 
43 ;  provision  of  Patterson  plan  respect- 
ing,  177. 

Resolution,  The,  224  note. 

Respublica  v.  De  Longchamps,  448-9. 

Respublica  v.   Sweers,  34,  58,  468. 

Revenue,  amount  of,  to  be  raised  by  col- 
onies for  government  under  Confedera- 
tion, 42;  of  Crown  of  England,  92;  bills 
of,  must  originate  in  lower  house  of  State 
legislature,  136;  provision  of  Randolph 
plan  respecting  national,  158;  provision  for, 
Patterson   Plan,   177. 

Revolution.    See  American  Revolution. 

Revolution,  French,  influence  of  Rousseau 
on,  35-6. 

Rex  v.  Cutbush,  346-7. 

Rhode  Island,  refused  to  acknowkledge  jur- 
isdiction of  Massachusetts  and  Plymouth, 
7;  not  a  member  of  New  England  Confed- 
eration, 7 ;  did  not  send  delegates  to  Fed- 
eral Convention,  7,  58,  147,  150,  153,  175, 
176,  309;  represented  at  Albany  Congress, 
11  ;  adoption  of  Constitution  by,  46,  153, 
309,  316,  380,  571  note;  representative  as- 
semblies in,  85  note;  charter  of,  85  note, 
103,  105,  131  ;  charter  provisions  of,  in 
force  after  Declaration  of  Independence, 
84;  not  obliged  to  submit  colonial  laws 
to  Great  Britain  for  approval,  101 ;  Holden 
and  Green  petition  respecting  territory  in, 
101-9;  boundary  disputes  of,  118-19  notes, 
125,  270,  379  note,  386-7,  401-2,  405,  420; 
constitution  of,  131,  380;  colonial  gover- 
nor of,  elected  by  people,  138;  courts  of, 
elected  by  colonial  authorities,  138;  ad- 
hered to  recommendations,  Federal  Con- 
vention, 153;  independence  of,  241;  dis- 
pute respecting  constitutionality  of  govern- 
ment of,  303  note,  380-2 ;  amendments  to 
Constitution  proposed  by,  330;  ratifica- 
tion of  first  ten  amendments  by,  572 
note. 

Rhode  Island  v.  Connecticut,  118,  119  note. 

Rhode  Island  v.  Massachusetts,  118,  119 
note,  125,  270,  379  note,  386-7,  401-2,  405, 
420. 

Rights     See  Bill  of  Rights. 

Rittenhouse,  David,  and  the  case  of  The 
Active,  222,   222   note 

Robinson  v.  Campbell,  440. 

Root,  Elihu,  instructions  of,  for  government 
of  the  Philippines,  330,  443,  443  note  1. 

Root,  Jesse,  agent,  case  of  Pennsylvania  v. 
Connecticut,  232. 


Rousseau,  influence  of  political  doctrines  of, 
on   Revolution,  35,  36,  36  note. 

Royal  African  Company,  a  joint-stock  com- 
pany, 68. 

Rules  and  Orders,  Federal  Convention.  See 
Committee  on  Rules  and  Orders. 

Rutledge,  Edward,  on  influence  of  New 
England   in   Congress,   41. 

Rutledge,  John,  seconded  election  of  Wash- 
ington as  President  of  Federal  Conven- 
tion, 149;  opposed  to  equal  suffrage  of 
States,  175 ;  views  of,  respecting  grant 
of  power  to  Congress  to  negative  State 
legislation,  179  note,  202;  member  com- 
promise committee,  Senate  suffrage  con- 
troversy, 185 ;  declined  position  as  member 
of  court,  case  of  Pennsylvania  v.  Con- 
necticut, 232 ;  in  favor  of  limitation  of 
judicial  power  of  United  States  to  one 
supreme  tribunal,  252,  253;  chairman,  Com- 
mittee of  Detail,  260,  261 ;  modifications  of, 
to  first  draft  of  Constitution,  261;  changes 
made  by,  in  Wilson's  draft,  261 ;  views 
of,  respecting  tenure  of  judges,  263;  in 
favor  of  jurisdiction  of  Supreme  Court 
in  questions  of  international  obligations, 
265,  268 ;  considered  special  provision  for 
settling  disputes  between  States  unnec- 
essary, 269,  270 ;  motion  of,  respecting  su- 
premacy of  laws  of  Union,  276;  opposed  to 
preparation  of  address  to  people  to  accom- 
pany Constitution,  329;  in  favor  of  separa- 
tion of  judicial  and  political  powers,  329. 

Saint  Ildefonso,  Treaty  of,  between  Spain 
and  France,  October  1,   1800,  376,  377. 

Sanborn,  In  re,  360-1. 

Sandys,  Sir  Edward,  drafted  second  Vir- 
ginia charter,  71 ;  drafted  third  Virginia 
charter,  72. 

Scotia,  The,  447  note. 

Seeley,  Sir  John,  on  nature  of  Englishmen 
to  assemble,  22,  83 ;  on  English  attitude 
toward  colonies,  66. 

Senate,  creation  of,  172  et  seq.;  great  de- 
bate respecting  equality  of  States  in,  180 
et  scq.;  duties  of,  in  connection  with  pres- 
idential election,  196;  approval  of,  neces- 
sary for  conclusion  of  treaties,  198-9;  ap- 
proval of,  necessary  for  appointment  of 
public  ministers,  199,  274;  application  to, 
in  disputes  respecting  territorial  jurisdic- 
tion between  States,  271 ;  a  high  court 
of  impeachment,  273;  approval  of,  neces- 
sary for  appointment  of  judges  of  Su- 
preme Court,  273,  274 ;  Madison's  amend- 
ments to  Constitution  considered  by,  326. 
See  also  Legislative  Department. 


600 


INDEX 


Sergeant,    Jonathan    Dickinson,    agent,    case 

of    Pennsylvania   v.    Connecticut,   232. 
Seven  Years'  War.    See  French  and  Indian 
War. 

Shaw,  Mr.  Chief  Justice,  on  interpretation 
of  terms  of  common  law,  445-6. 

Shay's    Rebellion,   1787,    Madison   on,   50. 

Sherman,  Roger,  member,  drafting  commit- 
tee of  Declaration  of  Independence,  30; 
Connecticut  delegate,  Federal  Convention, 
152;  remarks  on  question  of  equal  repre- 
sentation, of  States,  180-1,  184;  views  of, 
respecting  power  of  Congress  to  negative 
State  legislation,  201 ;  in  favor  of  limita- 
tion of  judicial  power  of  United  States 
to  one  supreme  tribunal,  252;  in  favor  of 
appointment  of  supreme  court  judges  by 
legislature,  255 ;  opposed  to  creation  of  in- 
ferior tribunals  by  Congress,  259 ;  con- 
sidered special  provision  for  settling  suits 
between  States  unnecessary,  269 ;  in  favor 
of  extending  judicial  power,  271;  in  favor 
of  equality  of  Western  States,  294 ;  con- 
sidered popular  ratification  of  Constitu- 
tion unnecessary,  305 ;  in  favor  of  separa- 
tion of  judicial  and   political   powers,  419. 

Shiras,  Mr.  Justice,  on  finality  of  decree  of 
Supreme   Court,   360-1 

Shirreft,  William,  member,  Massachusetts- 
New  Hampshire  boundary  commission,  119 
note. 

Siren,  The,  459-60. 

Sitgreaves,  John,  member  of  court,  Massa- 
chusetts-New York  boundary  dispute,  235; 
District  Judge,  North  Carolina  Circuit 
Court,  351. 

Skeene,  William,  member,  Massachusetts- 
New  Hampshire  boundary  commission,  119 
note. 

Slaves,  as  affecting  basis  of  representation 
in  legislature,  187;  three-fifths  rule  re- 
specting, 187;  right  to  continue  slave- 
trade,  insisted  on  by  Southern  States,  187, 
189;  provision  of  Constitution  relative  to 
importation  of,  188-90,  299-300. 

Smith  v.  Alabama,  443,  444. 

Smith,  Isaac,  member  of  court,  Massachu- 
setts-New York  boundary  dispute,  235. 

Smith,  Melancthon,  opposed  to  Constitu- 
tion, 314;  finally  voted  for  Constitution, 
315. 

Smith,  Sir  Thomas,  named  in  royal  charter 
as  first  governor  of  East  India  Company, 
69. 

Society  of  Nations,  question  of  large  and 
small  states  in,  41  ;  union  under  Articles 
of  Confederation  an  example  ior,  47; 
membership    of   United    States    in,    recog- 


nized by  treaties,  60;  difficulty  of  confer- 
ring upon  an  agent  the  exercise  of   large 
sovereign  powers,  99 ;   more  perfect  union 
under  Constitution  a  model  for,  147;  stand- 
ing   rules    and    orders    in    Federal    Con- 
vention a  precedent  for  future  conferences 
of    the,    156;    provisions    for    judicial    set- 
tlement   under    Confederation    capable    of 
application  to,  213;  a  permanent  court  of 
the,   282 ;    political   questions   of,   may   be- 
come judicial,  424;   sovereignty,  the  great 
problem  of,  467;  compared  with  the  union 
of    the    United    States,    467-8;    a    possible 
solution  of  the  problems  of,  468-9. 
South  and  North,  distrust  between,  41 ;  dis- 
tinction between,  77;  colonial  development 
contrasted,  83. 
South    Carolina,    representative    government 
set  up  in,  85  note;  boundary  disputes,  118 
note,   234,  236-7 ;    steps   taken   by,   to  pre- 
vent anarchy  during   Revolution,   129;  ap- 
pointed  delegates   to   Federal    Convention, 
147 ;  instructions  to  delegates,  Federal  Con- 
vention, 152;  opposed  to  equal  suffrage  of 
States    in    Senate,    184,    185 ;    constitution 
of,  198  note;  charter  of,  236;  in  favor  of 
popular    ratification    of    Constitution,    305, 
308;    ratification    of    Constitution    by,    311, 
312,    571    note ;    amendments    to    Constitu- 
tion proposed  by,  330 ;   ratification  of  first 
ten   amendments,   572   note. 
South   Carolina  v.  Georgia,  236-7. 
South  Carolina  v.  United  States,  335. 
South  Carolina,  The,  224  note. 
Southern    States,    and    regulations    of    com- 
merce,  188-9. 
Sovereignty,  passed  to  people  of  colonies  as 
result  of  the  Declaration  of  Independence, 
33;  certain  powers  of,  renounced  by  States 
under    Confederation,    42-3;    Madison    on, 
52;   of   States,  under  Articles  of  Confed- 
eration, 58;  of  States,  under  Constitution, 
161,   333-4;    problem    of,    in    establishment 
of  a  judiciary,  248-9;  not  amenable  to  suit 
without   consent,   249,  335 ;   of   the   people 
by  Constitution,  308;  division  of  sovereign 
powers,   334-5 ;    States   protected   from   at- 
tempts  of    Government   to   infringe   upon, 
359-60;  not  always  immune  from  suit,  456; 
suit  without  consent  inconsistent  with,  457; 
waiving   of,   457 ;    degree    of,    relinquished 
by  a  plaintiff  sovereign,  462-3,  464-5;  cases 
when    sovereign    becomes    subordinate    to 
law,  464 ;  the  great  problem  of  the  Society 
of  Nations,  467. 
Spaight,  Richard  Dobbs,  motion  of,  on  pro- 
cedure  in   Federal   Convention.    155. 
Spain,    ceded    Florida   to   United    States    by 


INDEX 


601 


treaty,  1819,  354;  Treaty  of,  with  France, 
1800   (Treaty  of  St.   Ildefonso),  376-7. 

Spain  v.  Machado.  See  King  of  Spain  v. 
Machado. 

Spaniards,  Jamaica,  conquered  from,  92,  95. 

Speedwell,  The,  224  note. 

Squirrel,  The,  224  note. 

States,  large  and  small,  and  Franklin's  plan 
of  union,  17;  claims  of  large  and  small,  in 
first  Congress  under  Confederation,  41; 
nature  of  union  of,  under  Confederation, 
42;  equal  suffrage  of,  in  Congress  under 
Confederation,  42;  sovereign  powers  sur- 
rendered by,  42-3,  230;  jurisdiction  of  Con- 
gress in  controversies  between,  44-5;  sit- 
uation of,  in  matters  of  commerce,  55,  166; 
coercion  of,  55,  158,  165,  178,  202,  203, 
279  et  seq.,  453;  Confederation  a  union  of 
sovereign,  58-9:  precedent  for  suit  of  citi- 
zens against,  102;  justice  to  small  States, 
118;  source  of  law  in  matter  of  constitu- 
tion for  union,  139-40;  question  of  equal 
suffrage  in  Federal  Convention,  148,  151, 
152,  153;  admission  of  new,  to  union,  159, 
178,  286  et  seq  ;  power  of  Congress  to 
regulate  commerce  with,  166;  renounced 
right  to  wage  war  unless  attacked,  167; 
militia  of,  168;  and  question  of  creation 
of  legislature,  172;  representation  and,  suf- 
frage of,  in  Congress,  172  et  seq.;  views 
of   small   and   large   regarding   representa- 

.  tion,  173 ;  power  of  Congress  to  negative 
unconstitutional  legislation  of,  178,  179 
notes,  180,  201-2;  distinct  commercial  in- 
terests of,  188;  voluntary  self  denials  of, 
including  disarmament,  210;  methods  of 
settling  controversies  between,  210-11,  229 
et  seq.;  courts  of,  211,  213;  resolution  of 
Congress  of  March  6,  1779,  regarding  rela- 
tions of,  221  ;  as  sovereign  powers  immune 
from  suit  without  their  consent,  248-9; 
Randolph  plan  in  interest  of  large  States, 
250;  Patterson  plan  in  interest  of  small, 
250:  large  and  small,  and  question  of  crea- 
tion of  judiciary,  255  et  seq.;  attitude  of 
large,  regarding  admission  of  new  States, 
291  ;  western  boundaries  of  original  not 
clear,  291,  291  note,  292  note;  safeguarded 
by  Constitution  against  partition  or  invol- 
untary union,  294;  unanimous  consent  of, 
not  necessary  to  amend  Constitution,  299; 
representation  of  small  States  provided 
by  Constitution  not  subject  to  amend- 
ment. 300;  judicial  powers  of,  303;  power 
of  Congress  to  recognize  governments  of, 
303  note,  380-2,  392 ;  amendments  to  Con- 
stitution respecting  relations  of,  to  union, 
325 ;  powers  not  delegated  are  reserved  to, 


328;  construction  placed  on  Constitution 
by,  333 ;  sovereign  powers  divided  between 
States  and  United  States,  333-4;  sover- 
eignty of,  protected  from  attempts  of  gov- 
ernment to  infringe  upon,  359-60;  cannot 
be  compelled  to  appear  in  court,  359 ;  re- 
lation of  court  to,  369;  cannot  tax  agents 
of  government,  368,  369,  412;  liability  of, 
to  suit,  410-12;  judicial  power  of  United 
States  extended  to  suits  between,  452-3; 
provision  of  Constitution  respecting  ju- 
dicial power  over,  453 ;  consent  of,  to  suit, 
454-5;  State  may  sue  a  State,  464;  union 
of,  model  for  Society  of  Nations,  467- 
8;  ratification  of  Constitution  by,  571  note; 
ratification  of  amendments  to  Constitu- 
tion by,  572  note. 

State  Constitutions.  See  Constitutions, 
State. 

State  conventions,  Randolph's  resolution  re- 
specting submission  of  amendments  to  Con- 
federation to,  158;  Constitution  ratified 
by,  331  ;  declarations  of,  respecting  power 
of  Supreme  Court  to  declare  laws  uncon- 
stitutional, 362 ;  no  attempt  at  coercion 
in,  452-3;  text  of  resolution  transmitting 
Constitution  to,  571. 

Statutes,  colonial.    See  Colonial  Laws. 

Stewart,  Charles,  president,  New  York- 
New  Jersey  boundary  commission,  1767, 
116. 

Story,  Mr.  Justice,  on  sovereignty  of  States, 
334 ;  on  power  lodged  in  sovereign,  383 ; 
held  Cherokee  Nation  to  be  a  nation  in 
sense  of  Constitution,  388;  opinion  of,  re- 
specting nature  and  extent  of  the  appel- 
late jurisdiction  of  the  United  States,  405- 
9;  "case"  defined  by,  430;  decision,  case 
of  De  Lovio  v.  Boit,  447  note:  on  goods 
of  United  States  subject  to  contribution, 
461. 

Strong,  Mr.,  in  favor  of  separation  of  politi- 
cal  and   judicial   powers,  418. 

Sturges  v.  Crowninshield,  59. 

Style,  Committee  on.  See  Committee  on 
Style. 

Suffrage,  of  States,  equal  under  Confedera- 
tion, 42,  172,  182;  resolution  of  Randolph 
plan  respecting,  158,  172;  change  in  rule 
of,  opposed  by  Delaware,  172 ;  in  Senate, 
172,  180  et  seq.;  in  House  of  Representa- 
tives, 179-80. 

Sullivan,  James,  agent,  Massachusetts-New 
York  boundary  dispute,  235. 

Supreme  Court,  genesis  of  authority  of,  in 
questions  of  constitutionality,  65;  prece- 
dents for  power  of,  over  legislatures,  101, 
121 ;    precedents    for    jurisdiction    of,    in 


602 


INDEX 


boundary  disputes,  108  et  scq.,  125-6;  es- 
tablished under  Constitution,  166,  211-12; 
jurisdiction  of,  in  international  questions, 
212,  265,  268  <?f  scq.;  Court  of  Appeals  in 
Cases  of  Capture,  immediate  predecessor 
of,  215,  225,  244;  Reports  of,  224;  tem- 
porary judicial  commissions  an  origin  of, 
229,  a  permanent  international  judiciary, 
244,  265 ;  account  of  creation  of,  247  et 
seq.;  problem  of  sovereignty  involved  in 
creation  of,  248-9;  difference  of  opinion 
in  Federal  Convention  respecting,  249 ;  two 
plans  for,  249-51;  question  of  appoint- 
ment of  judges  of,  249,  257-9,  273,  274; 
draft  proposals  concerning,  261-3;  tenure 
of  judges,  263-4,  274;  final  judicial  author- 
ity of  union,  265 ;  prototype  of  a  court  of 

.international  justice,  268  et  seq.;  vested 
with  jurisdiction  possessed  by  Congress 
under  Confederation,  271-2;  original  and 
appellate  jurisdiction  of,  272-3;  and  im- 
peachments, 272;  powers  of,  274,  374  et 
seq.;  jurisdiction  of,  in  cases  affecting  the 
United  States,  289;  appeal  to,  from  State 
courts,  304;  amendments  to  Constitution, 
subject  of  appeals  in,  330;  determination 
of  construction  of  Constitution  and  en- 
forcement of  its  precepts  duty  of,  333 ; 
extent  of  power  of,  defined  by  Congress, 
342;  passes  upon  constitutionality  of  fed- 
eral as  well  as  State  legislation,  344,  362; 
original  jurisdiction  of,  358,  398,  399,  402 
et  scq.,  453;  appellate  jurisdiction  of,  357, 
359,  398,  399,  402  et  seq.;  may  compel  in- 
dividuals but  not  States  to  appear,  359; 
finality  of  decree  of,  360;  original  juris- 
diction of,  can  not  be  enlarged  or  lessened, 
366-7;  determination  of  constitutionality 
by,  374;  powers  of,  purely  judicial,  375; 
cases  submitted  to,  involving  separation  of 
judicial  from  political  functions,  376  -et 
seq-  "supreme"  court  defined,  400;  es- 
tablished by  Judiciary  Act,  1787,  402-4; 
cases  involving  extent  of  jurisdiction  of, 
404  et  seq.;  authority  of,  showing  how 
political  questions  may  become  judicial, 
420-4 ;  functions  in  cases  only,  425 ;  States 
may  be  sued  in,  452 ;  precedent  for  a  court 
of  the  nations,  468. 

Swayne,  Mr.  Justice,  on  cases  involving 
political  department  of  government,  379 
note. 

Sweden,  Treaty  of,  with  United  States,  April 
3,  1783,  60. 

Sweers.    See  Respublica  v.  Sweers. 

Talbot,  Sir  Charles,  opinion,  respecting  leg- 
islative   power    of    Connecticut,    96,    348 ; 


on  international  law  and  common  law, 
448. 
Taney,  Chief  Justice,  opinion  of,  respecting 
power  of  Congress  to  recognize  State  gov- 
ernments, 303  note,  380-2,  392 ;  on  strictly 
judicial  power  of  United  States  Circuit 
Courts  and  judges,  352,  353;  on  distinc- 
tion between  judicial  and  other  powers, 
354-6;  on  nature  and  functions  of  Supreme 
Court,  357;  on  appellate  jurisdiction,  357; 
on  reason  for  creation  of  judicial  power, 
357-8;  on  original  jurisdiction  of  Supreme 
Court,  358;  on  exemption  of  States  from 
suit  without  consent,  359,  395 ;  on  ex- 
ercise of  judicial  power  in  sense  of  the 
Constitution,  359;  on  protection  of  sov- 
ereignty of  States,  359-60;  on  separation 
of  powers,  360;  on  coercion  of  States, 
453. 

Tappan,  Mr.  Justice,  on  interpretation  of 
terms  of  common  law,  444-5. 

Taxation,  contention  of  colonists  respecting 
money  raised  by,  15;  land  and  poll  tax 
distinguished,  42 ;  power  of  Congress  to 
lay  and  collect,  166;  of  exports,  opposi- 
tion of  States  to,  188;  report  of  commit- 
tee respecting,  188;  power  of,  granted  to 
Congress,  190. 

Taxation  of  Colonies  Act,  28. 

Taylor,  Colonel,  views  of,  respecting 
Randolph  plan  combated  by  Madison, 
162. 

Temporary  Judicial  Commissions.  See  Ju- 
dicial Commissions,  Temporary. 

Tennessee,  creation  and  admission  of  State 
of,  290. 

Territories,  power  of  Congress  over,  295. 

Texas  v.  White,  334-5,  370. 

Thistle,  The.  218. 

Thompson,  Charles,  signed  Declaration  of 
Independence  as  secretary  of  Congress, 
30. 

Thompson,  Mr.  Justice,  held  case  of  Chero- 
kee Nation  to  be  a  case  for  executive 
department,  388. 

Tilghman,  Chief  Justice,  case  of  The  Ac- 
tive, 218. 

Todd,  Mr.  Justice,  on  terms  of  law  and 
equity,   440-1. 

Toqueville,  Alexis  de,  on  American  judiciary, 
280. 

Trade,  association  to  cut  off  trade  between 
Great  Britain  and  colonies,  advocated  by 
Congress,  26;  John  Adams'  view  respect- 
ing Acts  of,  26,  178;  Act  prohibiting  Trade 
and    Intercourse,    1775,    28. 

Trade  Guilds,  origin  of  regulated  compan- 
ies, 68. 


INDEX 


603 


Trade  and  Intercourse,  Act  prohibiting,  1775, 
28. 

Trade  and  Plantations,  Lords  Commissioners 
of.  See  Lords  Commissioners  of  Trade 
and  Plantations. 

Trading  Companies,  charters  granted  to,  64 
et  seq.;  development  of,  68-9;  regulated 
companies,  68;  joint-stock  companies,  68; 
East  India  Company,  68,  69-70,  71,  73;  Lon- 
don Company,  70,  71-2,  74,  75,  76,  77; 
Plymouth  Company,  70,  77-9.  See  also 
Corporations. 

Treaties,  provisions  respecting,  Articles  of 
Confederation,  43,  44,  198  note,  248;  by 
whom  made,  43,  197-8;  certain  encroach- 
ments on  Federal  authority,  49;  supreme 
law  of  the  land,  178,  276-9,  375  ;  provision 
for,  South  Carolina  constitution,  198  note; 
provision  for  making,  in  constitution,  198 
note;  States  not  to  enter  into,  212;  liable 
to  infractions  under  Articles  of  Confedera- 
tion, 248;  jurisdiction  of  Supreme  Court,  in 
questions  arising  under,  268  et  seq.;  rights 
of  the  United  States,  respecting  moneys 
received  under,  433;  France  and  England 
(Treaty  of  Paris),  February  10, 1763, 14,23, 
94,  292,  347 ;  France  and  the  United  States,, 
February  6,  1778,  35,  49,  60;  United  States 
and  Holland,  October  8,  1782,  49,  60; 
United  States  and  Sweden,  April  3,  1783, 
60 ;  United  States  and  Great  Britain 
(Treaty  of  Peace),  September  3,  1783,  49, 
60,  276,  277,  Spain  and  France  (Treaty  of 
St.  Ildefonso),  October  1,  1800,  376,  377; 
France  and  United  States  (Treaty  of 
Paris),  April  30,  1803,  377;  United  States 
and  Spain,  February  22,  1819,  354;  United 
States  and  Mexico,  July  4,  1868,  431; 
United  States  and  Cuba,  377  note. 

Trevett  v.  Weeden,  261. 

Trial  by  Jury,  right  of  colonists  to,  25, 
98;  views  respecting,  in  Federal  Conven- 
tion, 329 ;  provided  for,  in  Constitution  of 
New  Jersey,  349. 

Triquet  v.  Bath,  448. 

Turkey  Company,  The,  a  regulated  company, 
68. 

Unfinished  Portions.  See  Committee  on  Un- 
finished Portions. 

Union,  the  Mayflower  Compact,  3;  suggested 
by  Fundamental  Orders  of  Connecticut,  4; 
early  plan  for,  6;  New  England  Confed- 
eration, 6,  7;  Penn's  "  scheam,"  6,  9,  10, 
11;  Franklin's  plan  of  1754,  6,  11-14;  im- 
portance of  union  of  colonies,  as  prece- 
dent, 9  note ;  Franklin's  plan  of  1775,  15- 
18;  sentiment  in  favor  of,  at  Albany  Con- 


gress, 11 ;  of  sovereign  States  by  Articles 
of  Confederation,  34,  58-61;  nature  of, 
under  Confederation,  42. 

United  States,  independence  declared  by,  22; 
a  body  corporate,  34;  government  of  Con- 
federacy styled,  42,  58;  management  of 
general  interests  of,  41 ;  and  suits,  459  et 
seq.;  may  be  sued  in  Court  of  Claims,  465. 

United  States  v.  Clarke,  460. 

United  States  v.  Ferreira,  352,  353,  354-6. 

United  States  v.  Hudson  and  Goodwin,  441-2. 

United  States  v.  McRae,  461. 

United  States  v.  Texas,  465. 

United  States  v.  Todd,  352-3,  354. 

United  States  v.  Wagner,  462-3. 

United  States  v.  Wilder,  461. 

United  States  v.  Wong  Kim  Ark,  444. 

Van  Home's  Lessee  v.  Dorrance,  365-6. 

Vanhorn,  Abraham,  member,  Massachusetts- 
New  Hampshire  boundary  commission,  119 
note. 

Vanhorn,  Cornelius,  member,  Massachusetts- 
New  Hampshire  boundary  commission,  119 
note. 

Vattel,  works  of,  consulted  by  framers  of 
Constitution,  439. 

Vermont,  excluded  from  Albany  plan  of 
union,  11;  constitution  of,  136,  290;  not  a 
colony  under  the  Crown,  136 ;  not  a  State 
under  Articles  of  Confederation,  136, 
290;  boundary  disputes  involving  existence 
of,  238-41 ;  organized  as  a  State  by  settlers 
of  Green  Mountains,  239;  declared  inde- 
pendence, 239,  290,  292  note ;  independence 
recognized,  241 ;  admitted  to  Union,  Feb- 
ruary 18,  1791,  571  ;  ratification  of  Con- 
stitution by,  571  note ;  ratified  amendments 
to  Constitution,  572  note. 

Vetoes,  executive  and  judicial,  200-2. 

Vice-President,  method  of  election  of,  196; 
may  be  removed  from  office,  197. 

Virginia,  governed  directly  as  a  province  by 
the  Crown  from  1624  to  Revolution,  22, 
76;  house  of  burgesses  in,  2X  74,  76,  83, 
84  note ;  compact  of,  with  Maryland  an 
encroachment  on  Federal  authority,  49 ; 
interest  of,  in  navigation  of  Chesapeake 
Bay,  55,  56,  145 :  part  of,  in  Annapolis 
Convention,  56,  145;  appointed  delegates 
to  Federal  Convention,  57,  145:  govern- 
ment of,  model  for  southern  colonies,  64; 
representative  assemblies  in,  74,  83,  84 
note;  ordinance  of  July,  1621,  creating  two 
supreme  councils  in,  74-5  ;  powers  of  Vir- 
ginia Company  resumed  by  Crown,  1624, 
76;  constitution  of  State  of,  76-7,  133; 
compared  with  Massachusetts  colony,  83-4 ; 


604 


INDEX 


boundary  controversy  with  North  Caro- 
lina, 118  note,  119  note;  Bill  of  Rights, 
135,  308,  313,  328;  instructions  to  delegates, 
Federal  Convention,  150;  part  of,  in  bring- 
ing about  Federal  Convention,  162 ;  op- 
posed to  equal  suffrage  of  States,  173 ;  op- 
posed to  election  of  senators  by  State  legis- 
latures, 180;  opposed  to  equal  suffrage  of 
States  in  Senate,  184, 185  ;  cession  to  United 
States  of  claims  of,  to  northwest  territory, 
242 ;  claims  of,  to  northwest  territory, 
292,  292  note;  in  favor  of  popular  ratifica- 
tion of  Constitution,  305,  308;  ratification 
of  Constitution  by,  312-14,  315,  571  note; 
amendments  to  Constitution  proposed  by, 
330;  statute  of,  forbidding  sale  of  lottery 
tickets,  409 ;  ratification  by,  of  first  ten 
amendments,  572  note. 

Virginia  Charters.  First  charter,  1606:  pro- 
visions of,  70-1 ;  divided  British  territory 
in  America  into  two  sections,  70,  77 ;  less 
liberal  than  charter  to  East  India  Com- 
pany, 71 ;  settlements  under,  did  not 
thrive,  71.  Second  charter,  1609:  provi- 
sions of,  71-2 ;  greater  powers  granted  by, 
71 ;  company  created  a  body  politic  by,  72 ; 
excluded  northern  section,  77.  Third 
charter,  1912:  granted  to  London  Com- 
pany, 72-4,  79;  provisions  of,  72-4;  added 
powers  granted  by,  73. 

Virginia  Company.    See  London  Company. 

Virginia  v.  West  Virginia,  102,  125-6. 

Virginian  Plan.    See  Randolph  Plan. 

Vischer,  Nicholas  John,  map  of  New  Jersey 
compiled  by,  116. 

Waite,  Mr.  Chief  Justice,  on  concurrent 
power  of  Federal  and  State  Courts,  417-18, 

War,  to  be  declared  by  Congress,  43,  167; 
to  be  carried  on  by  United  States,  not  by 
any  one  State,  167,  210,  212. 

Washington,  George,  in  French  and  Indian 
War,  14?  commander-in-chief  of  Conti- 
nental armies,  27,  27  note,  28,  29,  129;  on 
excellence  of  Articles  of  Confederation, 
46,  46  note;  head  of  Virginia  delegation 
to  Federal  Convention,  147;  president, 
Federal  Convention,  148-9;  on  aim  of  Fed- 
eral Convention,  161  ;  first  president,  167, 
312,  322;  refused  third  term  as  president, 
195 ;  urged  establishment  of  prize  court  by 
Congress,  216-18;  urged  adoption  of  Con- 
stitution, 311,  313;  on  general  view  in  Fed- 
eral Convention  respecting  a  bill  of  rights, 
329 ;  on  difficulties  overcome  in  forming 
union  under  Constitution,  332. 

Washington,  Mr.  Justice,  case  of  The  Active, 
222  note. 


Wearge,  Sir  Clement,  on  legislative  power 
in  English  colonies,  95,  96. 

Weights  and  measures,  standard  of,  fixad  by 
Congress,  43,  168. 

Wells,  John,  member,  Massachusetts-New 
Hampshire  boundary  commission,  118  note. 

Wentworth,  Governor,  grants  of,  under  seal 
of  New  Hampshire,  238. 

West  Jersey.    See  New  Jersey. 

West,  Richard,  on  English  common  law  in 
relation  to  colonies,  97. 

Whipple,  William,  member  of  court,  Penn- 
sylvania v.  Connecticut,  232,  233. 

White,  Chief  Justice,  on  suit  of  a  citizen 
against  a  State,  102,  125-6;  opinion  of,  in- 
volving distinction  between  political  and 
judicial  questions,  390-3. 

White  County  Commissioners  v.  Gwin,  399- 
400. 

Whole,  Committee  of  the.  See  Committee 
of  the  Whole. 

William  111,  New  York-Connecticut  agree- 
ment of  1683,  confirmed  by,  114. 

Williams  v.  Suffolk  Insurance  Company, 
378-9,  379  note,  382. 

Williams,  Roger,  testimony  of,  case  of 
Holden  and  Green,  102,  105,  106. 

Williamson,  Hugh,  favored  compromise,  Sen- 
ate suffrage  controversy,  184;  views  of, 
respecting  provision  for  settling  disputes 
between  States,  269. 

Wilson,  Ex  parte,  444. 

Wilson,  James,  nominated  William  Temple 
Franklin  for  secretary,  Federal  Conven- 
tion, 149;  on  representation  of  New 
Hampshire  at  Federal  Convention,  175 ; 
views  of,  respecting  question  of  grant  of 
power  to  Congress  to  negative  State  legis- 
lation, 178  note,  179  note,  180,  200-1;  op- 
posed to  equality  of  suffrage  in  Senate, 
182;  in  favor  of  a  check  upon  legislative 
department,  201 ;  agent,  case  of  Pennsyl- 
vania v.  Connecticut,  232 ;  opposed  to 
limitation  of  judicial  power  of  United 
States,  252;  favored  establishment  of  in- 
ferior tribunals  by  national  legislature, 
253;  motion  of,  leaving  appointment  of 
judges  to  the  executive  branch,  258;  mem- 
ber, Committee  of  Detail,  260;  prepared, 
enlarged  and  revised  draft  of  Constitution, 
261  ;  recommended  judicial  method  for  set- 
tling disputes  between  States,  270;  Justice, 
Circuit  Court  for  District  of  Pennsylvania, 
350;  opinion  of,  respecting  unconstitution- 
ality of  an  act  of  Congress,  365  ;  proposed 
investing  judiciary  with  political  functions, 
418;  on  extent  of  judicial  power  of  United 
States,  418,  447. 


INDEX 


605 


Winthrop  v.  Lechmere,  96,  97,  101,  119-21, 
348. 

Winthrop,  John,  and  two  houses  of  repre- 
sentatives in  Massachusetts,  83. 

Wisconsin  v.  Pelican  Insurance  Company, 
431. 

Wood,  Vice-Chancellor  Page,  on  status  of 
United  States  suing  in  English  court, 
462-3. 

Wythe,  George,  declined  position  as  judge  in 
Court  of  Appeals  in  Cases  of  Capture, 
223;  member  of  court,  Massachusetts-New 
York  boundary  dispute,  235 ;  declared  act 
of  Virginia  legislature  unconstitutional, 
363. 

Yates,  Mr.  Justice,  on  by-laws  of  a  corpora- 
tion inconsistent  with  charter,  347. 


Yates,  Robert,  on  Pinckney  plan  of  federal 
government,  163,  251  ;  member,  compro- 
mise committee,  Senate  suffrage  contro- 
versy, 185;  on  jurisdiction  of  national 
judiciary,  254-5. 

Yick  Wo  v.  Hopkins,  140. 

York,  James  Duke  of,  grant  of  Charles  II  to, 
116,  117,  122,  123;  Penn's  purchase  of  quit 
claim  to  Delaware  from,  122 ;  claim  of, 
to  Crown  of  England,  344,  348. 

Yorke,  Sir  Philip,  on  legislative  power  in 
English  colonies,  95-6;  appeared  for  Win- 
throp, case  Lechmere  v.  Winthrop,  120, 
348 ;  opinion  of,  case  Penn  v.  Lord  Balti- 
more, 124;  considered  boundary  dispute  in- 
volving a  contract  between  the  parties  ap- 
propriate for  exercise  of  judicial  power, 
387. 


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